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Full text of "North Carolina Register v.7 no. 12 (9/15/1992)"

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The 
NORTH CAROLINA 

REGISTER 



& 



TITTU 
I TIOM 



IN THIS ISSUE 



RECEIVED 

SEP W fflt 

LAW USgAgr 



EXECUTIVE ORDER 

PROPOSED RULES 

Environment, Health, and Natural Resources 
Human Resources 

Insurance 1 

N.C. Housing Finance Agency 

RRC OBJECTIONS 

RULES INVALIDATED BY JUDICIAL DECISION 

CONTESTED CASE DECISIONS 

ISSUE DATE: September 15, 1992 

Volume 7 • Issue 12 • Pages 1155-1253 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE mn F 



NORTH CAROLINA REGISTER 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars ($8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N C. 2761 1-7447. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



NORTH CAROLINA ADMINISTRATIVE CODE 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents ($0.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
Drawer 27447, Raleigh, North Carolina 27611-7447, (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 



ISSUE CONTENTS 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich. 

Director of APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



I. EXECUTIVE ORDER 

Executive Order 175 1155 

II. PROPOSED RULES 

Environment, Health, and 
Natural Resources 

Adult Health 1199 

Governor's Waste Management 

Board 1197 

Health: Epidemiology 1212 

Health: Personal Health 1217 

Health Services 1174 

Human Resources 
Medical Assistance 1156 

Independent Agencies 
N.C. Housing Finance Agency . 1219 

Insurance 

Consumer Services 1 157 

Financial Evaluation 1162 

Life and Health 1167 

III. RRC OBJECTIONS 1221 

IV. RULES INVALIDATED BY 
JUDICIAL DECISION 1225 

V. CONTESTED CASE DECISIONS 

Index to AD Decisions 1226 

Text of Selected Decisions 

91 OSP0407 1235 

91 INS 1008 1238 

92 EHR0112 1242 

92 OSP0024 1245 

VI. CUMULATIVE INDEX 1251 



NORTH CAROLINA REGISTER 

Publication Schedule 

(August 1992 - December 1993) 







Last Day 


Earliest 


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for Elec- 


Date for 


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tronic 


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Adoption 


to Submit 


Effective 


Date 


for Filing 


Filing 


Hearing 


by Agency 


to RRC 


Date 


He****** 


******* 


$: i}< sf: ^ s)< sje s(c 


******* 


si* >< ^t s< ;■< s(= =< 


>!< a|< ijC ilftJ?; sj« 5}c 


******* 


08/03/92 


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* Tlie "Earliest Effective Date" is computed assuming that the agency 
follows the publication schedule above, that the Rules Review Commission approves 
the rule at the next calendar month meeting after submission, and that RRC delivers 
the rule to the Codifier of Rules five (5) business days before the 1st business day of 
the next calendar month. 



EXECUTIVE ORDER 



EXECUTIVE ORDER NUMBER 175 
HURRICANE ANDREW RELIEF 

WHEREAS, states of emergency have 
been declared in the States of Florida and Louisi- 
ana and the Governors of Florida and Louisiana 
have requested that the State of North Carolina 
temporarily waive weight restrictions on the gross 
weight of trucks transporting food, supplies and 
equipment to the areas of disaster caused by 
Hurricane Andrew and weight and license require- 
ments thereon; and 



(4) The vehicles will, upon entering the 
State of North Carolina stop at the 
first available vehicle weight station 
and produce identification sufficient to 
establish that the load contained there- 
on is part of the Hurricane Andrew 
relief effort. 

Section 2. The vehicles described 
above will be exempt from the vehicle licensing 
and tax requirements of N.C.G.S. 105, Subchapter 
5, Article 36B. 



WHEREAS, on August 24, 1992, the 
United States Department of Transportation de- 
clared a regional emergency justifying an exemp- 
tion from 49 C.F.R. 390-99 (Federal Motor 
Carrier Safety Regulations) for a period of thirty 
days in response to Hurricane Andrew; and 

WHEREAS, pursuant to Chapter 
166 A, the North Carolina Emergency Management 
Act, and by the authority vested in me as Gover- 
nor of the State of North Carolina by the Constitu- 
tion and laws of this State, and with the concur- 
rence of the Council of State; and 

WHEREAS, for the purpose of 
relieving human suffering caused by Hurricane 
Andrew it is ORDERED: 

Section 1. That for a period of time 
beginning immediately until September 28. 1992, 
the State of North Carolina under the supervision 
and direction of the Department of Transportation 
and Division of motor Vehicles will waive weight 
restrictions on the gross weight of vehicles trans- 
porting food, supplies and equipment to the vic- 
tims of Hurricane Andrew subject to the following 
conditions: 



Section 3. As a result of the 24 
August 1992 declaration of regional emergency by 
the United States Department of Transportation 
and the corresponding exemption from 49 C.F.R. 
390-99, nonparticipants in North Carolina's Inter- 
national Registration Plan will be permitted to pass 
through North Carolina in accordance with the 
spirit of the exemptions identified by this Execu- 
tive Order. 

Section 4. The North Carolina 
Department of Transportation shall enforce the 
conditions set forth in Section 1 and Section 2 in 
a manner in which would best accomplish the 
implementation of this rule without endangering 
the motorists on North Carolina highways. 

This Order is effective immediately 
and shall remain in effect until September 28, 
1992. 

This the 28th day of August, 1992. 



(1) Vehicle weight will not exceed the 
maximum gross vehicle weight crite- 
ria established by the manufacturer or 
90,000 lbs. gross vehicle weight, 
whichever is less. 

(2) Tandem axle weights shall not exceed 
42,000 lbs., and single axle weights 
shall not exceed 22,000 lbs. 

(3) The vehicles will be allowed only on 
primary and interstate routes to be 
designated by the Department of 
Transportation. 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1155 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

/Votice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical 
Assistance intends amend rule cited as 10 NCAC 
26D .0012. 

1 he proposed effective date of this action is 
January 4, 1993. 

1 he public hearing will be conducted on October 
16. 1992 at 1:30 pm at the North Carolina Divi- 
sion of Medical Assistance , 1985 Umstead Drive, 
Room 132. Raleigh. NC. 

tvcason for Proposed Action: Tlie rule clarifies 
that the phrase "date of payment" also addresses 
Medicaid claims for which payment was denied. 

Ksomment Procedures: Written comments con- 
cerning this amendment must be submitted by 
October 16. 1992. to: Division of Medical Assis- 
tance. 1985 Umstead Drive. Raleigh. N. C. 27603. 
ATTN. Daphne Lyon. Oral comments may be 
presented at the hearing. In addition, a fiscal 
impact statement is available upon written request 
from the same address. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26D - LIMITATIONS ON 
AMOUNT: DURATION: AND SCOPE 

.0012 TIME LIMITATION 

(a) To receive payment, claims must be filed: 

( 1 ) Within 365 days of the date of service 
for services other than inpatient hospi- 
tal, home health or nursing home ser- 
vices; 

(2) Within 365 days of the date of dis- 
charge for inpatient hospital services 
and the last date of service in the month 
for home health and nursing home 
services not to exceed the limitations as 
specified in 42 C.F.R. 447.45; 

(3) Within 180 days of the Medicare or 
other third party payment when the date 
of payment exceeds the filing limits in 
Paragraphs ( 1 ) or (2) of this Rule. 

(b) Providers must file requests for payment 
adjustments or requests for reconsideration of a 



denied claim no later than 18 months after the date 
of payment or denial of a claim, or adjustment s 
will not be made. 

(c) The limitation in this Rule may be waived by 
the Division of Medical Assistance when a delay 
in eligibility determination has made it impossible 
for the provider to file the claim within the 365 
days provided for in (a) of this Rule. 

(d) In cases where claims or adjustments were 
not filed within the time limitations specified in (a) 
and (b) of this Rule, and the provider shows 
failure to do so was beyond his control, he may 
request a reconsideration review by the Director of 
the Division of Medical Assistance. The Director 
of Medical Assistance is the final authority for 
reconsideration reviews. If the provider wishes to 
contest this decision, he may do so by filing a 
petition for a contested case hearing in confor- 
mance with G.S. 150B-23. 

Authority G.S. 108A-25(b); 42 C.F.R. 447.45. 

iVotice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical 
Assistance intends to amend rule(s) cited as 10 
NCAC26D .0016. 

1 he proposed effective date of this action is 
February 1, 1993. 

1 he public hearing will be conducted at 1:30 
p.m. on September 30, 1992 at the North Carolina 
Division of Medical Assistance, 1985 Umstead 
Drive, Room 132, Raleigh, NC 27603. 

Ixeason for Proposed Action: The 1992 General 
Assembly mandated that co-payment required of 
Medicaid recipients be established at the maximum 
amounts allowed by federal regulation. Tins 
action implements that requirement. 

L^onvnent Procedures: Written conunents con- 
cerning this amendment must be submitted by 
September 30. 1992, to: Division of Medical 
Assistance, 1985 Umstead Drive, Raleigh, N.C. 
27603, ATTN: Clarence Ervin. Oral comments 
may be presented at the hearing. In addition, a 
fiscal impact statement is available upon written 
request from the same address. 



1156 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26D - LIMITATIONS ON 
AMOUNT: DURATION: AND SCOPE 

.0016 CO-PAYMENT 

(a) Co-payment Requirements. The following 
requirements are imposed on all Medicaid recipi- 
ents for the following services: 

(1) Outpatient Hospital Services. Co-pay- 
ment will be charged at the rate of &ne 
dollar ($1.00) three dollars ($3.00) per 
outpatient visit. 

(2) Chiropractic Services. Co-payment will 
be charged at the rate of fifty c e nts 
($.50) one dollar ($1 .00) per chiroprac- 
tic visit. 

(3) Podiatric Services. Co-payment will be 
charged at the rate of one dollar ($1 .00) 
per podiatric visit. 

(4) Optometric Services. Co-payment will 
be charged at the rate of on e dollar 
($1.00) two dollars ($2.00) per opto- 
metric visit. 

(5) Optical Supplies and Services. Co-pay- 
ment will be charged at the rate of two 
dollars ($2.00) per item. Co-payment 
for repair of eyeglasses and other opti- 
cal supplies will be charged at the rate 
of two dollars ($2.00) per repair ex- 
ceeding five dollars ($5.00). 

(6) Prescribed Drugs. Eff e ctiv e Augu s t 
4-5^ — 1991 , — the — r e cipi e nt — co paym e nt 
amount — fer- — proscription — drug s — w+H- 
increase from — fifty cents — ($.50) p e r 
prescription to Co-payment will be 
charged at the rate of one dollar ($1 .00) 
per prescription, including refills. 

(7) Dental Services. Co-payment will be 
charged at the rate of twe — dollar s 
($2.00) three dollars ($3.00) per visit, 
except when more than one visit is 
required. If more than one visit is 
required but the service is billed under 
one procedure code with one date of 
service, then only one co-payment shall 
be collected. Full and partial dentures 
are examples. 

(8) Physicians. Eff e ctiv e Augu s t 15, 1991, 
th e r e cipi e nt co paym e nt amount for a 
phy s ician vi s it will incr e as e from fifty 
c e nt s ($.50) per vi s it to two dollars 
($2.00) Co-payment will be charged 
at the rate of three dollars ($3.00) per 
visit. 



$9) Hospital Inpatient Services. No co pay 

ment will be charged for hospital inpa 
tiont s ervic e s. 



{W> Rural H e a l th Cli 



m 



lnic s . — No eo paym e nt 
will b e charged for rural h e alth clinic 
s e rvic e s. 
-C4t 



) Clinics (Oth e r than — R-wal — Health). 

Co payment will b e charged at the rate 
of fifty c e nt s ($.50) p e r visit. 

f42-) Non Ho s pital Dialysis Facility S e rvic e s. 

No co paym e nt will — b e charg e d for 
non hospital dialy s i s facility se rvic es . 

f4-3^ Hom e H e alth Servic es . No co paym e nt 

will b e charged for hom e health s e rvic 
es-r 

{44) H e aring Aid Disp e ns e rs. — No co pay 

ment will be charged for s e rvic e s r e n 
d e r e d by h e aring aid disp e nsers. 

{4-S-) Ambulanc e . — No co paym e nt will b e 

charg e d for ambulanc e s e rvices. 
(b) Co-payment Exemptions. No co-payment 
will be charged for the following services: 

(1) EPSDT related services; 

(2) Family Planning Services; 

(3) Services in state owned mental hospi- 
tals; 

(4) Services covered by both Medicare and 
Medicaid; 

(5) Services to children under age 48 21; 
(6 Services related to pregnancy; 

(7) Services provided to residents of ICF, 
ICF-MR, SNF, Mental Hospitals; and 

(8) Hospital emergency room services. 

Authority G.S. 108A-25(b); S.L. 1985. c. 479, s. 
86; 42 C.F.R. 440.230(d); Tax Equity and Fiscal 
Responsibility Act of 1982, Subtitle B; Section 95 
of Chapter 689, 1991 Session Laws. 

TITLE 11 - DEPARTMENT OF rNSURANCE 

IVotice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Insurance 
intends to adopt rules cited as 11 NCAC 4 .0120- 
.0122, .0429-.0430; amend rules cited as .0415, 
.041 8-. 041 9, .0421, .0423; and repeal rules cited 
as 11 NCAC 4 .0424 and .0428. 

1 he proposed effective date of this action is 
December 1. 1992. 

Instructions on How to Demand a Public Hearing: 
A request for a public hearing must be made in 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1157 



PROPOSED RULES 



writing, addressed to Ellen K. Sprenkel, N.C. 
Department of Insurance. P. O. Box 26387, Ra- 
leigh, NC 27611. This request must be received 
within 15 days of this notice. 

iXeason for Proposed Action: To keep current 
with insurance industry practices and to afford 
consumers better protection in dealing with agents 
and insurers; and to comport with recodification of 
Chapter 58. 

Ksomment Procedures: Written comments may be 
sent to Ellen K. Sprenkel. P. O. Box 26387. Ra- 
leigh, NC 27611. Anyone having questions should 
call Bill Stevens at (919) 733-2002 or Ellen K. 
Sprenkel at (919) 733-4529. 



CHAPTER 4 



CONSUMER SERVICES 
DIVISION 



SECTION .0100 - GENERAL PROVISIONS 

.0120 POLICV OR SERVICE FEES 

An agent, broker, or limited representative who 
deals directly with consumers and who intends to 
charge a policy or service fee in accordance with 
G.S. 58-33-85(b) shall not do so unless he com- 
plies with the following: 

(1) A sign that informs consumers in large 
bold print that a policy or service fee of 
|"amountl will be charged, shall be dis- 
played in a prominent place so as to be 
seen and read from any part of the office 
lobby. 

(2) The consumer's consent in writing is 
obtained with the date and amount shown 
each time a policy or service fee is 
charged. 

(3) A dated receipt for the payment of a 
policy or service fee shall be issued 
either separately from the policy premi- 
um receipt or stated separately on the 
receipt issued for the policy premium. 

Statutory Authority G. S. 58-2-40; 58-2-195: 58-33- 
85(b). 

.0121 PREMIUM PAYMENT RECEIPTS 

Premium payment receipts, other than those 
issued directly by an insurer, shall be dated and 
contain the printed or stamped name and address 
of the agency or agent, broker, or limited repre- 
sentative, and the name of the insurer. Receipts 
shall be signed by the person accepting the pay- 



ment. 

Statutory Authority G.S. 58-2-40; 58-2-185; 58-2- 
195. 

.0122 POWER-OF-ATTORNEY 
PROHIBITED 

Except for authorizations given in accordance 
with G.S. 58-45-35(a) or G.S. 58-46-15, no agent, 
broker, or limited representative shall obtain a 
power-of- attorney from a consumer that authorizes 
the agent, broker, or limited representative to sign 
insurance-related forms. 

Statutory Authority G.S. 58-2-40; 58-2-195. 

SECTION .0400 - PROPERTY AND 
LIABILITY 

.0415 SAFE DRIVER E\CENTIVE PLAN 

The following are Department of Insurance 
policies regarding the Safe Driver Insurance - 
Incentive Plan ("SDIP") : 

(1) License revocation for refusal to submit 
to chemical tests shall not be considered 
conviction of a moving traffic violation. 

(2) A conviction for driving the wrong way 
on a one-way street is not a conviction 
for driving on the wrong side of the 
road. 

(3) The revocation or suspension of a driv- 
er's license solely because of the accumu- 
lation of motor vehicle points shall not be 
considered a conviction. 

(4) When new operators are added to an 
automobile policy, their SDIP points may 
be added to the policy at the same time 
coverage is extended to them. 

(5) Points SDIP points for an operator whose 
license has been suspended or revoked 
may be added only at the date the opera- 
tor again becomes eligible for license 
with the following exception: SDIP 
points may be charged at the inception 
date of the current policy if the operator 
has previously been convicted of a mov- 
ing traffic violation while his license was 
suspended or revoked or if there is reli- 
able evidence that the operator does, in 
fact, operate a motor vehicle. 

(6) If an operator dies or permanently leaves 
an insured's household during the policy 
period, his SDIP points shall be removed 
at the time of his death or departure. 



1158 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



Statutory Authority G. S. 58-2-40; 58-36-65; 58-36- 
75. 

.0418 TOTAL LOSSES ON MOTOR 
VEHICLES 

The commissioner shall consider as prima facie 
violative of G.S. 58 5 4 . 4 (11) 58-63-15(11) the 
failure by an insurer to adhere to the following 
procedures concerning settlement of covered "total 
loss" motor vehicle claims when such failure is so (4) 

frequent as to indicate a general business practice: 

(1) If the insurer and the claimant are initial- 
ly unable to reach an agreement as to the 
value of the vehicle, the insurer shall 
base any further settlement offer not only 
on published regional average values of 

similar vehicles, but also on the value of (5) 

the vehicle in the local market. Local 
market value shall be determined by 
using either the local market price of a 
comparable vehicle or, if no comparable 
vehicle can be found, quotations from at 
least two qualified dealers within the 
local market area. Additionally, if the 
claimant represents that the vehicle actu- 
ally owned by him was in better than 
average condition, the insurer shall give 
due consideration to the condition of the 
claimant's vehicle prior to the accident. 

(2) Where the insurer has the right to elect to 
replace the vehicle and does so elect, the 
replacement vehicle shall be available 
without delay, similar to the lost vehicle, 
and paid for by the insurer, subject only 
to the deductible and to the value of any 
enhancements acceptable to the insured. 

(3) If the insurer makes a deduction for the 
salvage value of a "total loss" vehicle 
retained by the claimant, the insurer, if 
so requested by the claimant, shall fur- 
nish the claimant with the name and 
address of a salvage dealer who will 
purchase the salvage for the amount 
deducted. Th e insur e r shall b e r e sponsi 
ble for all r e asonabl e towing and s torag e 
charg es until three days aft e r th e own e r 
and s torag e facility are notifi e d in writing 
that th e insur e r will no long e r r e imburse 
th e own e r or s torag e facility for s torag e 

charg e s. — Notification to th e own e r s hall (6) 

includ e th e nam e , addr ess and t e l e phon e 

numb e r of the facility where the vehicle 

i s b e ing s tor e d. — Notification to th e stor 

ag e facility shall includ e th e nam e , ad 

dr e ss and t e l e phon e numb e r of th e own 



er-. — No in s ur e r shall abandon th e salvage 
of a motor v e hicl e to a towing and/or 
storage service without th e agreed per 
mission of the service involv e d. — In in 
stanc e s where th e towing and s torag e 
charges are paid to th e own e r, th e ch e ck 
or draft for the amount of such charg es 
shall b e payable jointly to th e owner and 
th e towing/storag e service. 
If a written statement is requested by the 
claimant, a total loss payment by an 
insurer shall be accompanied by a written 
statement listing the estimates, evalua- 
tions and deductions used in calculating 
the payment, if any, and the source of 
these values. 

When a motor vehicle is damaged in an 
amount which, inclusive of original and 
supplemental claims, equals or exceeds 
75 percent of the preaccident actual cash 
value, as such value is determined in 
accordance with this Rule, an insurance 
carrier, shall "total loss" the automobile 
by paying the insured the preaccident 
value, and in return, receiving possession 
of the legal title of the salvage of said 
automobile. At the election of the in- 
sured or third-party claimant , or in those 
circumstances where the insurance carrier 
will be unable to obtain an unencumbered 
title to the damaged vehicle then the 
insurance carrier shall have the right to 
deduct the value of the salvage of the 
total loss from the actual value of the 
vehicle and leave such salvage with the 
insured subject to the insurance carrier 
abiding by Subparagraph — (3) — of thi s 
R e gulation Subparagraphs (3) and (6) of 
this Rule. No insurer, adjuster, apprais- 
er, agent, or any other person shall enter 
into any oral or written agreement(s) by 
and between themselves, to limit any 



original or supplemental claim(s) so as to 
artificially keep the repair cost of a dam- 
aged vehicle below 75% of its preaccid- 
ent value, if in fact such original and any 
supplemental claim(s) exceed or would 
exceed 75% of the vehicle's preaccident 
value. 

The insurer shall be responsible for all 
reasonable towing and storage charges 
until three days after the owner and 
storage facility are notified in writing that 
the insurer will no longer reimburse the 
owner or storage facility for storage 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1159 



PROPOSED RULES 



charges. Notification to the owner shall 
include the name, address, and telephone 
number of the facility where the vehicle 
is being stored. Notification to the stor- 
age facility shall include the name, ad- 
dress, and, if available, telephone number 
of the owner. No insurer shall abandon 
the salvage of a motor vehicle to a tow- 
ing or storage service without the consent 
of the service involved. In instances 
where the towing and storage charges are 
paid to the owner, the check or draft for 
the amount of such service shall be pay- 
able jointly to the owner and the towing 
or storage service. 

Statutory Authority G.S. 58-2-40; 58-63-15. 

.0419 MOTOR VEHICLE REPAIR 
ESTIMATES 

The commissioner shall consider as prima facie 
violative of G.S. 58 5 4 . 4 (11) 58-63-15(11) the 
failure by an insurer to adhere to the following 
procedures concerning repair estimates on covered 
motor vehicle damage claims submitted when such 
failure is so frequent as to indicate a general 
business practice: 

(1) If the insurer requires the claimant to 
obtain more than two estimates of proper- 
ty damage, the cost, if any, of such 
additional estimates shall be borne by the 
insurer. 

(2) No insurer shall refuse to inspect the 
damaged vehicle if a personal inspection 
is requested by the claimant. However, 
if the damaged vehicle is situated other 
than where it is normally used or cannot 
easily be moved, the insurer may satisfy 
the requirements of this Section by hav- 
ing a competent local appraiser inspect 
the damaged vehicle. 

(3) When the insurer elects to have the clai- 
mant's property repaired, the insurer 
shall, if so requested by the claimant, 
furnish the claimant with a legible front 
and back copy of its estimate. This 
estimate shall contain the name and ad- 
dress of the insurer and, if the estimate 
was prepared by a repair service, the 
name and address of that service. If 
there is a dispute concerning pre-existing 
damage to the vehicle which the insurer 
does not intend to have repaired, the 
extent of such damage shall be clearly 
stated in the estimate. 



(4) No insurer shall require or recommend a 
claimant to utilize a particular repair 
service. 

(5) Ne If requested by a claimant, an insurer 
shall refus e to provide to the claimant 
with copies of a* the estimate and all 
supplements thereto that it uses to offer a 
settlement. 

Statutory Authority G. S. 58-2-40; 58-63-15. 



.0421 HANDLING OF LOSS AND CLAIM 
PAYMENTS 

The commissioner shall consider as prima facie 
violative of G.S. 58-49 58-3-100 and 5 8 54.4(11) 
58-63-15(1 1) failure by an insurer to adhere to the 
following procedures concerning loss and claim 
payments when such failure is so frequent as to 
indicate a general business practice: 

(1) Loss and claim payments shall be mailed 
or otherwise delivered promptly within 
10 business days after the claim is set- 
tled. 

(2) Unless the insured consents, no insurer 
shall deduct from a loss or claim payment 
made under one policy premiums owed 
by the insured on another policy. 

(3) No insurer shall withhold the entire 
amount of a loss or claim payment be- 
cause the insured owes premium or other 
monies in an amount less than the loss or 
claim payment. 

(4) If a release or full payment of claim is 
executed by an insured or claimant, 
involving a repair to a motor vehicle, 
prior to or at th e time of the repair, it 
shall not bar the right of the claimant to 
promptly assert a claim for property 
damages unknown to either the claimant 
or to the insurance carrier prior to the 
repair of the vehicle or a claim for di- 
minished value, directly caused by the 
accident which could not be determined 
or known until after the repair or at- 
tempted repair of the motor vehicle. 
Claims asserted within 30 days after 
repair for diminished value and 30 days 
after discovery of unknown damage shall 
be considered promptly asserted. 

(5) Except in the total loss situations, the 
insurer shall be liable to the vehicle 
owner and others as their legal interest 
may require, for the full cost of repairs 
less policy deductibles, depreciation/- 



1160 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



betterment and r e pairs made du e to prior 
and unrepaired damage on the vehicle. 
In total loss situations, the insurer shall 
protect any lienholder's interest, as re- 
corded with the Division of Motor Vehi- 
cles, by placing the lienholder's name on 
the settlement check or draft as co-payee. 

Statutory Authority G.S. 58-2-40; 58-3-100; 58-63- 
15. 

.0423 ETHICAL STANDARDS 

(a) Every agent, limited representative, broker, 
adjuster, appraiser, or other insurer's representa- 
tive shall, when in contact with the public: 

(1) promptly identify himself and his occu- 
pation; 

(2) carry the license issued to him by the 
Department of Insurance while per- 
forming his duties and display it upon 
request to any insured or third party 
claimant, any repairer at which he is 
investigating a claim or loss, any de- 
partment representative, or any other 
person with whom he has contact while 
performing his duties; 

(3) conduct himself in such a manner as to 
inspire confidence by fair and honor- 
able dealings. 

(b) No adjuster or apprais e r shall: No claims 
management person, agent, agency employee, 
limited representative, broker, adjuster, appraiser, 
or other insurer's representative shall: 



W- 



r e comm e nd th e utilization of a partiou 



lar motor v e hicl e r e pair se rvic e without 
clearly informing th e claimant that h e is 
und e r no obligation to use the recom 
m e nd e d r e pair s ervice and may u se the 
s e rvic e of his choic e ; 
(i) accept any gratuity or other form of 
remuneration from a repair s e rvic e any 
provider of services for recommending 
that repair service provider to claim- 
ants; 

f£) purchase salvage from a claimant; 
whose claim h e i s adju s ting or apprai s 



Lii 



ill 



Lii 



ing without fir s t disclosing to th e claim 
ant th e natur e of hi s int e r es t in th e 
tran s action; 

(4) intimidate or discourage any claim- 
ant from seeking legal advice and coun- 
sel by withdrawing and reducing a 
settlement offer previously tendered to 
the claimant or threatening to do so if 
the claimant seeks legal advice or coun- 



sel. No adjuster shall advise a claimant 
of the advisability of seeking or not 
s e eking legal counsel nor shall recom- 
mend any legal counsel to any claimant 
under any circumstance. 
(c) No claims management person, agent, agency 
employee, limited representative, broker, or other 
insurer's representative shall recommend the 
utilization of a particular motor vehicle repair 
service without clearly informing the claimant that 
he is under no obligation to use the recommended 
repair service and that he may use the service of 
his choice. 

Statutory Authority G. S. 58-2-40; 58-33-10; 58-33- 
25; 58-33-30; 58-35-25; 58-63-15; 58-65-40. 

.0424 PURPOSE 

The purpose of this Rul e is to s e t forth s tandard s 
for prompt, — fern — and — e quitabl e s e ttl e m e nts — ©f 
motor v e hicle insurance claims with regard to th e 
us e of aft e r market parts. 

Statutory Authority G.S. 58-9. 

.0428 ENFORCEMENT 

Violation s of this Section which are so fr e qu e nt 
a s to indicate a g e n e ral business practice s hall b e 
d ee m e d by the Commission e r to b e an unfair trad e 
practic e — under — Articl e — 3A — of General — Statut e 
Chapt e r 5 8 . 

Statutory Authority G.S. 58-9. 

.0429 COMVflNGLING 

The accounting records maintained by agents, 
brokers, and limited representatives shall demon- 
strate at aU times that collected funds due to 
insurers and return premiums due to policyholders 
are available at aU times. 

Statutory Authority G.S. 58-2-40; 58-2-195. 

.0430 CERTIFICATE OF MAILING; 
AUTOMOBILE LNSURANCE 

As used in G.S. 20-3 10(f), "certificate of mail- 
ing" means a certificate issued by and bearing the 
date stamp of the United States Postal Service. 

Statutory Authority G.S. 20-310; 58-2-40. 



/Votice is hereby given in accordance with G.S. 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1161 



PROPOSED RULES 



150B-21.2 that the N. C. Department of Insurance 
intends to adopt rule (s) cited as 11 NCAC 11 A 
. 0601 - . 0609. 

1 he proposed effective date of this action is 
December 1. 1992. 

1 he public hearing will he conducted at 10:00 
a.m. on September 30. 1992 at 430 N. Salisbury 
Street, 3rd Floor Hearing Room. Dohbs Building. 
Raleigh. N.C. 27611. 

tveason for Proposed Action: To regulate rein- 
surance intermediaries and to comply with the 
insurance department accreditation program of the 
National Association of Insurance Commissioners. 

Comment Procedures: Written comments may be 
sent to Ray Martinez. Financial Compliance, P. O. 
Box 26387. Raleigh. N.C. 27611. Oral presenta- 
tions may be made at the public hearing. Anyone 
having questions should call Ray Martinez at (919) 
733-2002 or Ellen Sprenkel at (919) 733-4529. 



CHAPTER 11 - FINANCIAL EVALUATION 
DIVISION 

SUBCHAPTER 11A - GENERAL 
PROVISIONS 

SECTION .0600 - REINSURANCE 
INTERMEDIARIES 

.0601 DEFINITIONS 

As used in this Section: 

( 1 ) "Actuary" means a person who meets the 
standards of a qualified actuary, as speci- 
fied in the National Association of Insur- 
ance Commissioners Annual Statement 
Instructions, as amended or clarified by 
rule or order of the Commissioner, for 
the type of insurer for which an interme- 
diary' is establishing loss reserves. 

(2) "Broker" means any person, other than 
an officer or employee of a ceding insur- 
er, who solicits, negotiates, or places 
reinsurance cessions or retrocessions on 
behalf of a ceding insurer without the 
authority or power to bind reinsurance on 
behalf of the ceding insurer. 

(3) "Commissioner" means the Commission- 



er of Insurance of North Carolina and 
includes his authorized deputies and 
employees. 

(4) "Controlling person" means any person 
who directly or indirectly has the power 
to direct or cause to be directed the 
management, control, or activities of an 
intermediary. 

(5) "Intermediary" has the same meaning 
contained in G.S. 58-2-225(a) and in- 
cludes a broker or a manager. 

(6) "Manager" means any person who has 
authority to bind or manages all or part 
of the assumed reinsurance business of a 
reinsurer (including the management of a 
separate division, department, or under- 
writing office) and acts as an agent for 
the reinsurer. The following persons are 
not managers, with respect to a reinsurer: 

(a) An employee of a reinsurer; 

(b) A U.S. manager of the United States 
branch of an alien reinsurer; 

(c) An underwriting manager that, pursuant 
to contract, manages all the reinsurance 
operations of a reinsurer, is under 
common control with the reinsurer 
under Article 19 of General Statute 
Chapter 58, and whose compensation is 
not based on the volume of premiums 
written: 

(d) The manager of a group, association, 
pool, or organization of insurers that 
engage in joint underwriting or joint 
reinsurance and that are subject to 
examination by the insurance regulator 
of the state in which the manager's 
principal business office is located. 

"Person" includes an individual, aggrega- 



m 

i8] 

£9} 
M 

ib) 



tion of individuals, corporation, associa- 
tion, or partnership. 

"Producer" means an insurance agent or 
insurance broker licensed under Article 
33 of General Statute Chapter 58 or an 
intermediary licensed under this Section. 
"Qualified U.S. financial institution" 
means a bank that: 
Is organized, or in the case of a U.S. 
office of a foreign banking organization 
is licensed, under the laws of the Unit- 
ed States or any state; 
Is regulated, supervised, and examined 
by federal or state authorities having 
regulatory authority over banks and 
trust companies: and 
Has been determined by the Securities 



1162 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



Valuation Office of the National Asso- 



(10) 



ciation of Insurance Commissioners to 
meet its standards of financial condition 
and standing in order to issue letters of 
credit. 
'Reinsurer" means any licensed insurer 



that is authorized to assume reinsurance. 



Statutory Authority G. S. 58-2-40; 58-2-225. 

.0602 LICENSURE 

(a) No person shall act as a broker in this State 
if the broker maintains and office either directly, 
as a member or employee of a non-corporate 
entity, or as an officer, director, or employee of a 
corporation: 

(1) In this State, unless the broker is a 
producer in this State; or 

(2) In another state, unless the broker is a 
producer in this State or another state 
having a law or rule substantially simi- 
lar to this Section or unless the broker 
is licensed under this Section as a non- 
resident intermediary. 

(b) No person shall act as a manager: 

( 1 1 For a reinsurer domiciled in this State, 
unless the manager is a producer in this 
State; 

(2) In this State, if the manager maintains 
an office directly, as a member or 
employee of a non-corporate entity, or 
as an officer, director or employee of a 
corporation in this State, unless the 
manager is a producer in this State; 

(3) In another state for a foreign insurer, 
unless the manager is a producer in this 
State or another state having a law or 
rule substantially similar to this Section, 
or the manager is licensed in this State 
as a nonresident intermediary. 

(c) Every manager subject to Paragraph (b) of 
this Rule shall demonstrate to the Commissioner 
that he has evidence of financial responsibility in 
the form of fidelity bonds or liability insurance to 
cover the manager's contractual obligations. If 
any manager can not demonstrate this evidence, 
the Commissioner shall require the manager to: 

(1) Maintain a separate fidelity bond in 
favor of each reinsurer represented in 
an amount that will cover those obliga- 
tions and which bond is issued by an 
authorized insurer; or 



ill 



Maintain an errors and omissions liabil- 



ity insurance policy in an amount that 
will cover those obligations and which 



policy is issued by a licensed insurer. 

(d) The Commissioner shall issue an intermedi- 
ary license to any person who has complied with 
the requirements of this Section. A license issued 
to a non-corporate entity authorizes all of the 
members of the entity and any designated employ- 
ees to act as intermediaries under the license; and 
those persons shall be named in the application and 
any supplements. A license issued to a corpora- 
tion authorizes all of the officers and any designat- 
ed employees and directors of the corporation to 
act as intermediaries on behalf of the corporation; 
and those persons shall be named in the application 
and any supplements. 

(e) If an applicant for an intermediary license is 
a nonresident, the applicant, before receiving a 
license, shall designate the Commissioner as his 
agent for service of legal process; and shall furnish 
the Commissioner with the name and address of a 
resident of this State upon whom notices or orders 
of the Commissioner or process affecting the 
nonresident intermediary may be served. The 
licensee shall notify the Commissioner in writing 
of every change in his designated agent for service 
of process within five business days after the 
change; and the change shall not become effective 
until acknowledged by the Commissioner. 

(f) The Commissioner shall refuse to issue an 
intermediary license if: 

( 1 ) the applicant, anyone named on the 
application, or any member, principal, 
officer, or director of the applicant, is 
not trustworthy; or 

(2) any controlling person of the applicant 
is not trustworthy to act as an interme- 
diary; or 

(3) any of the persons in Subparagraphs (1) 
and (2) of this Paragraph has given 
cause for revocation or suspension of 
the license or has failed to comply with 
any prerequisite for the issuance of the 
license. 

Upon written request, the Commissioner shall 
furnish a summary of the basis for refusal to issue 
a license. 

(g) Attorneys at law licensed by this State are 
exempt from this Rule when they are acting in 
their professional capacities. 

Statutory Authority G.S. 58-2-40; 58-2-225. 

.0603 REQUIRED CONTRACT 
PROVISIONS - BROKERS 

Transactions between a broker and the insurer it 
represents as a broker shall only be entered into 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1163 



PROPOSED RULES 



pursuant to a written authorization, specifying the 
responsibilities of each party. The authorization 
shall include provisions to the effect that: 

( 1 ) The insurer may terminate the broker's 
authority at any time. 

(2) The broker will render accounts to the 
insurer that accurately detail all material 
transactions, including information neces- 
sary to support all commissions, charges, 
and other fees received by or owing to 
the broker; and will remit all funds due 
to the insurer within 30 days after receipt 
by the broker. 

(3) All funds collected for the insurer's 
account will be held by the broker in a 
fiduciary capacity in a qualified U.S. 
financial institution. 

The broker will comply with this Rule. 
The broker will comply with the written 
standards established by the insurer for 
the cession or retrocession of aU risks. 
The broker will disclose to the insurer 
any relationship with any reinsurer to 
which business will be ceded or retroced- 
ecL 
The broker wil 



<4i 
15} 



16} 



01 



18} 



19} 



(a} 

ib} 

i£l 
id} 
lei 
if! 



annually provide the 
insurer with an audited statement of the 
broker's financial condition, which state- 
ment will be prepared by an independent 
certified public accountant. 
The insurer will have access and the right 
to copy and audit all accounts and re- 
cords maintained by the broker related to 
its business, in a form usable by the 
insurer. 

For at least 10 years after the expiration 
of each contract of reinsurance transacted 
by the broker, the broker will keep a 
complete record for each transaction 
showing: 
The type of contract, limits, underwrit- 
ing restrictions, classes or risks and 
territory; 

Period of coverage, including effective 
and expiration dates . cancellation provi- 
sions and notice required of cancella- 
tion; 

Reporting and settlement requirements 
of balances; 

Rate or rates used to compute the rein- 
surance premium; 

Names and addresses of assuming 
reinsurers; 

Rates of all reinsurance commissions, 
including the commissions on any 



retrocession handled by the broker; 
(g) Related correspondence and memoran- 

da, 
(h) Proof of placement; 
(i) Details regarding retrocessions handled 

by the broker, including the identity of 
retrocessionaires and percentage of each 
contract assumed or ceded; 
ij} Financial records, including premium 

and loss accounts; and 
(k) When the broker procures a reinsurance 
contract on behalf of a licensed ceding 
insurer: 
ill Directly from any assuming reinsurer, 
written evidence that the assuming 
reinsurer has agreed to assume the 
risk; or 
(ii) ]f placed through a representative of 
the assuming reinsurer, other than an 
employee, written evidence that the 
reinsurer has delegated binding au- 
thority to the representative. 

Statutory Authority G.S. 58-2-40; 58-2-225. 

.0604 DUTIES OF INSURERS USING 
SERVICES OF BROKERS 

(a) An insurer shall not engage the services of 
any person to act as a broker on its behalf unless 
the person is licensed under 1 1 NCAC 1 1 A .0602. 

(b) An insurer shall not employ an individual 
who is employed by a broker with which it trans- 
acts business, unless the broker is under common 
control with the insurer under Article 19 of Gener- 
al Statute Chapter 58. 

Statutory Authority G.S. 58-2-40; 58-2-225. 

.0605 REQUIRED CONTRACT 

PROVISIONS - MANAGERS 

Transactions between a manager and the reinsur- 



er it represents as a manager shall only be entered 

into pursuant to a written contract, specifying the 

responsibilities of each party, which shall be 

approved by the reinsurer's board of directors. At 

least 30 days before the reinsurer assumes or cedes 

business through the manager, a certified copy of 

the approved contract shall be filed with the 

Commissioner for approval. The contract shall 

include provisions to the effect that: 

( 1 ) The reinsurer may terminate the contract 

for cause upon written notice to the 

manager. The reinsurer may immediate- 

ly_ suspend the authority of the manager 

to assume or cede business during the 



1164 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



pendency of any dispute regarding the 
cause for termination. 

(2) The manager will render accounts to the 
reinsurer accurately detailing all material 
transactions, including information neces- 
sary to support all commissions, charges, 
and other fees received by or owing to 
the manager; and will remit all funds due 
under the contract to the reinsurer at least 
once every month. 

(3) All funds collected for the reinsurer's 
account will be held by the manager in a 
fiduciary capacity in a qualified U.S. 
financial institution. The manager may 
retain no more than three months' esti- 
mated claims payments and allocated loss 
adjustment expenses. The manager shall 
maintain a separate bank account for each 
reinsurer that it represents. 

(4) For at least 10 years after the expiration 
of each contract of reinsurance transacted 
by the manager, the manager will keep a 
complete record for each transaction 
showing: 

(a) The type of contract, limits, underwrit- 
ing restrictions, classes or risks and 
territory; 

(b) Period of coverage, including effective 
and expiration dates, cancellation provi- 
sions and notice required of cancella- 
tion, and disposition of outstanding 
reserves on covered risks; 

(c) Reporting and settlement requirements 
of balances; 

(d) Rate used to compute the reinsurance 
premium; 

(e) Names and addresses of reinsurers; 

(f) Rates of all reinsurance commissions, 
including the commissions on any 
retrocessions handled by the manager; 

(g) Related correspondence and memoran- 
da, 

(h) Proof of placement; 

(i) Details regarding retrocessions handled 

by the manager, as permitted by 1 1 
NCAC 1 1 A .0607, including the identi- 
ty of retrocessionaires and percentage 
of each contract assumed or ceded; 

(j) Financial records, including but not 

limited to, premium and loss accounts; 
and 

(k) When the manager places a reinsurance 
contract on behalf of a ceding insurer: 
(i) Directly from any assuming reinsurer, 
written evidence that the assuming 



reinsurer has agreed to assume the 
risk; or 
(ii) If placed through a representative of 
the assuming reinsurer, other than an 
employee, written evidence that the 
reinsurer has delegated binding au- 
thority to the representative. 

(5) The reinsurer will have access and the 
right to copy all accounts and records 
maintained by the manager related to its 
business in a form usable by the reinsur- 
er. 

(6) The contract cannot be assigned in whole 
or in part by the manager. 

(7) The manager will comply with the writ- 
ten underwriting and rating standards 
established by the insurer for the accep- 
tance, rejection, or cession of all risks. 

(8) The rates, terms, and purposes of com- 
missions, charges, and other fees that the 
manager may levy against the reinsurer 
shall be set forth. 

(9) If the contract permits the manager to 

settle claims on behalf of the reinsurer: 

(a) All claims will be reported to the rein- 
surer in a timely manner; 

(b) A copy of the claim file will be sent to 
the reinsurer at its request or as soon as 
it becomes known that the claim: 

(i) Has the potential to exceed an amount 

set by the reinsurer and approved by 

the Commissioner; 

Involves a coverage dispute; 

May exceed the manager's claims 

settlement authority; 
(iv) Is open for more than six months; or 
(v) Is closed by payment of an amount set 

by the reinsurer and approved by the 

Commissioner. 
All claim files will be the joint property 
of the reinsurer and manager. Howev- 
er, upon an order of liquidation of the 
reinsurer the files shall become the sole 
property of the reinsurer or its estate; 
the manager shall have reasonable 
access to and the right to copy the files 
on a timely basis; 

Any settlement authority granted to the 
manager may be terminated for cause 
upon the reinsurer's written notice to 
the manager or upon the termination of 
the contract. The reinsurer may sus- 
pend the settlement authority during the 
pendency of the dispute regarding the 
cause of termination. 



(Hi) 



{£) 



id] 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1165 



PROPOSED RULES 



(10) 



If the contract provides for a sharing of 
interim profits by the manager, the inter- 
im profits will not be paid until one year 
after the end of each underwriting period 
for property business and five years after 
the end of each underwriting period for 
casualty business and not until the ade- 
quacy of reserves on remaining claims 
has been verified pursuant to U_ NCAC 
11A .0607. 

The manager will annually provide the 
reinsurer with an audited statement of its 
financial condition prepared by an inde- 
pendent certified public accountant. 
The reinsurer shall at least semi-annually 
conduct an on-site review of the under- 
writing and claims processing operations 
of the manager. 
( 13) The manager will disclose to the reinsur- 



12) 



'14) 



er any relationship it has with any insurer 
before ceding or assuming any business 
with the insurer pursuant to this contract. 
Within the scope of its actual or apparent 
authority the acts of the manager shall be 
deemed to be the acts of the reinsurer on 
whose behalf it is acting. 



Statutory Authority G.S. 58-2-40; 58-2-225. 

.0606 PROHIBITED ACTS 

A manager shall not: 



iii 



Cede retrocessions on behalf of the rein- 



(2) 
(4) 



surer, except that the manager may cede 
facultative retrocessions pursuant to 
obligatory facultative agreements if the 
contract with the reinsurer contains rein- 
surance underwriting guidelines for the 
retrocessions. The guidelines shall in- 
clude a list of reinsurers with which the 
automatic agreements are m effect, and 
for each reinsurer, the coverages and 
amounts or percentages that may be 
reinsured, and commission schedules. 
Commit the reinsurer to participate in 
reinsurance syndicates. 
Appoint any producer without assuring 
that the producer is duly licensed to 
transact the type of reinsurance for which 
he is appointed. 

Without prior approval of the reinsurer, 
pay or commit the reinsurer to pay a 
claim settlement with a retrocessionaire, 
without prior approval of the reinsurer. 
If prior approval is given, a report must 
be promptly forwarded to the reinsurer. 



(5) Collect any payment from a retrocession- 
aire or commit the reinsurer to any claim 
settlement with a retrocessionaire, with- 
out prior approval of the reinsurer. If 
prior approval is given, a report must be 
promptly forwarded to the reinsurer. 

(6) Jointly employ an individual who is 
employed by the reinsurer unless the 
manager is under common control with 
the reinsurer under Article 19 of General 
Statute Chapter 58. 

(7) Appoint a sub-manager. 

Statutory Authority G. S. 58-2-40: 58-2-225. 

.0607 DUTIES OF REINSURERS 

USING SERVICES OF A MANAGER 

(a) A reinsurer shall not engage the services of 
any person to act as a manager on its behalf unless 
the person is licensed under 1 1 NCAC 1 1A .0602. 

fbl If a manager establishes loss reserves, the 
reinsurer shall annually obtain the opinion of an 
actuary attesting to the adequacy of loss reserves 
established for losses incurred and outstanding on 
business produced by the manager. This opinion 
shall be in addition to any other required loss 
reserve certification. 

(c) Binding authority for all retrocessional 
contracts or participation in reinsurance syndicates 
shall be given to an officer of the reinsurer who is 
not affiliated with the manager. 

(d) Within 30 days after termination of a con- 
tract with a manager, the reinsurer shall provide 
written notification of the termination to the 
Commissioner. 



(e) A reinsurer shall not appoint to its board of 
directors any officer, director, employee, control- 
ling person, or subproducer of its manager. This 
Rule does not apply to relationships governed by 
Article 19 of General Statute Chapter 58 or G.S. 
58-3-165. 

Statutory Authority G.S. 58-2-40; 58-2-225. 

.0608 EXAMINATION AUTHORITY 

(a) An intermediary is subject to examination by 
the Commissioner. The Commissioner shall have 
access to alf books, bank accounts, and records of 
an intermediary in a form usable to the Commis- 
sioner. 

(b) A manager may be examined as if it were 
the reinsurer. 

Statutory Author in G.S. 58-2-40: 58-2-225. 



1166 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



.0609 PENALTIES AND LIABILITIES 

(a) An intermediary, insurer, or reinsurer found 
by the Commissioner, after hearing, to be in 
violation of any provision of this Section shall: 

(1) For each separate violation, pay a 
penalty of one thousand dollars 
($1,000), not to exceed a total penalty 
of five thousand dollars ($5,000); 

(2) Be subject to revocation or suspension 
of its license; and 

(3) If a violation was committed by the 
intermediary, the intermediary shall 
make restitution to the insurer or rein- 
surer or to the rehabilitator or liquida- 
tor of the insurer or reinsurer for any 
net losses incurred by the insurer or 
reinsurer that are caused by the viola- 
tion. 

(b) Any order of the Commissioner under 
Paragraph (a) of this Rule is subject to judicial 
review under G.S. 58-2-75. 

(c) Nothing in this Rule affects the right of the 
Commissioner to impose any other penalties 
provided in General Statute Chapter 58. 

(d) Nothing in this Rule limits or restricts the 
rights of policyholders, claimants, creditors, or 
other third parties; or confer any rights on those 
persons. 

Statutory Authority G.S. 58-2-40; 58-2-225. 



/Votice is hereby given in accordance with G.S. 
150B-21.2 that the intends to amend rule(s) cited 
as 11 NCAC 12 . 1002. . 1004, . 1006, . 1008, . 1009 
and . 1010 and adopt rule (s) cited as 11 NCAC 12 
.1017- .1021. 

1 he proposed effective date of this action is 
December 1, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on October 1, 1992 at 430 N. Salisbury 
Street, 3rd Floor Hearing Room, Dobbs Building, 
Raleigh, N.C. 27611. 

MXeason for Proposed Action: To bring North 
Carolina 's rules in compliance with model regula- 
tions of the National Association of Insurance 
Commissioners. 



Comment Procedures: Written comments may be 
sent to Teresa Shackelford, P. O. Box 26387, 
Raleigh, N.C. 27611. Oral presentations may be 
niade at the public hearing. Anyone having ques- 
tions should call Teresa Shackelford at (919) 733- 
5060 or Ellen Sprenkel at (919) 733-4529. 

CHAPTER 12 - LIFE AND HEALTH 
DIVISION 

SECTION .1000 - LONG-TERM CARE 
INSURANCE 

.1002 DEFINITIONS 

(a) As used in this Section, th e t e rms "appli 
cant", "certificate", "group long t e rm care insur 
anc e ", "long t e rm care in s uranc e ", and "policy" 
have the meaning s se t forth in G.S. 5 8 55 20. 
"insurer" means an entity licensed under General 
Statute Chapter 58 that writes long-term care 
insurance. 

(b) The definitions contained in G.S. 58-1-5 and 
in G.S. 58-55-20 are incorporated in this Section 
by reference. 

Statutory Authority G.S. 58-2-40(1); 58-55-20; 
58-55-30(a). 

.1004 POLICY PRACTICES AND 
PROVISIONS 

(a) The terms "guaranteed renewable" or "non- 
cancellable" may not be used in any individual 
policy without further explanatory language in 
accordance with the disclosure requirements of 1 1 
NCAC 12 .1005. 

(b} — No individual policy may contain r e n e wal 
provisions — tess — favorabl e — te — the — in s ur e d — than 
"guaranteed r e n e wable": — Provid e d that th e Com 
mission e r may authoriz e nonr e n e wal on a state 
wid e ba s i s , on t e rm s and conditions he considers 
n e c e ssary to b e st prot e ct the int e r es t s of th e insur 
e d s , if th e in s ur e r d e mon s trate s that: 

{4-) r e n e wal — will j e opardiz e th e insurer's 

s olv e ncy; or 

(3) the actual — paid claim s — and e xp e ns e s 

hav e substantially e xce e d e d th e premi 
um and inv e stm e nt incom e associat e d 
with th e polici e s; and 

(3) the policies will continu e to e xp e ri e nce 

s ub s tantial and un e xp e ct e d losses over 
th e ir lif e tim e s; and 

f4) th e proj e ct e d — lo ss e xp e ri e nc e of the 

policies — cannot — be — significantly — im- 
prov e d or mitigat e d through r e a s onable 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1167 



PROPOSED RULES 



pate — adjustm e nt s or oth e r r e a s onabl e 
m e thods; and 

fS-> th e insur e r ha s mad e r e p e ated and good 

faith att e mpts to stabiliz e loss e xp e ri 
e no e of th e policies, including tim e ly 
filings for rat e adjustm e nts. 
fe) £bj The term "guaranteed renewable" may 
be used only when the insured has the right to 
continue the policy in force by timely payments of 
premiums; during which period the insurer has no 
unilateral right to make any change in any provi- 
sion of the policy while the policy is in force and 
can not refuse to renew; Provided that rates may 
be revised by the insurer on a class basis. 

fd4 [c} The word "noncancellable" may be used 
only when the insured has the right to continue the 
policy in force by timely payments of premiums; 
during which period the insurer has no right to 
unilaterally make any change in any provision of 
the policy or in the premium rate. 

fe) £dj No policy may limit or exclude coverage 
by type of illness, treatment, medical condition, or 
accident, except as follows: 

(1) preexisting conditions as specified in 
G.S. 58-55-30: 

(2) mental or nervous disorders, except for 
Alzheimer's Disease: 

(3) alcoholism and drug addiction: 

(4) illness, treatment, or medical condition 
arising out of: 

(A) war or act of war (whether declared 
or undeclared); 

(B) participation in a felony, riot, or 
insurrection; 

(C) service in the armed forces or units 
auxiliary thereto; 

(D) suicide, attempted suicide, or inten- 
tionally self-inflicted injury: or 

(E) aviation activity as a nonfare-paying 
passenger; 

(5) treatment provided in a government 
facility (unless otherwise required by 
law); services for which benefits are 
available under Medicare, under any 
other governmental program (except 
Medicaid), or under any state or federal 
workers" compensation, employer's 
liability, or occupational disease law; 
services provided by a member of the 
insured's immediate family; and servic- 
es for which no charge is normally 
made in the absence of insurance; 

(6) exclusions and limitations for payment 
for services provided outside the United 
States; and 



(7) legitimate variations in benefit levels to 
reflect differences in provider rates, 
ff) (e) Termination of a policy shall be without 
prejudice to any benefits payable for institutional- 
ization if the institutionalization began while the 
policy was in force and continues without interrup- 
tion after termination. Such extension of benefits 
beyond the period during which the policy was in 
force may be limited to the duration of the benefit 
period, if any. or to payment of the maximum 
benefits; and may be subject to any policy waiting 
period and all other applicable provisions of the 
policy. 

Statutory Authority G.S. 58-2-40(1 ); 58-55-30(a). 

.1006 REQUIRED DISCLOSURE 
PROVISIONS 

(a) Individual policies shall contain a renewabili- 
ty provision. Such provision shall be appropriately 
captioned, shall appear on the first page of the 
policy, and shall clearly state the duration, where 
limited, of renewability and the duration of the 
term of coverage for which the policy is issued 
and for which it may be renewed. This Paragraph 
does not apply to policies that do not contain a 
renewability provision and under which the right 
to not renew is reserved solely to the policyholder. 

(b) Except for riders or endorsements by which 
the insurer effectuates a request made in writing by 
the insured under an individual policy, all riders or 
endorsements added to an individual policy after 
date of issue or at reinstatement or renewal that 
reduce or eliminate benefits or coverage in the 
policy shall require signed acceptance by the 
individual insured. After the date of policy issue, 
any rider or endorsement that increases benefits or 
coverage with a concomitant increase in premium 
during the policy term must be agreed to in writ- 
ing signed by the insured, unless the increased 
benefit or coverage is required by law. Where a 
separate additional premium is charged for benefits 
provided in connection with riders or endorse- 
ments, such premium charge shall be set forth in 
the policy, rider, or endorsement. 

(c) A policy that provides for the payment of 
benefits based on standards described as "usual and 
customary", "reasonable and customary", or words 
of similar import, shall include a definition of such 
terms and an explanation of such terms in its 
accompanying outline of coverage. 

(d) If a policy contains any permitted limitations 
with respect to preexisting conditions, such limita- 
tions shall appear as a separate paragraph of the 
policy and shall be labeled as "Preexisting Condi- 



1168 



7:12 XORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



tion Limitations". 

(e) Life insurance that provides an accelerated 
benefit for long-term care shall include a disclo- 
sure notice, which shall be displayed on the face of 
the rider or the policy to which the rider is at- 
tached. The notice shall be in bold faced print and 
shall read as follows: 

BENEFITS PAID UNDER THIS RIDER MAY 
BE TAXABLE. IF SO, YOU OR YOUR 
BENFICIARY MAY INCUR A TAX OBLIGA- 
TION. AS WITH ALL TAX MATTERS. YOU 
SHOULD CONSULT A PROFESSIONAL TAX 
ADVISOR TO ASSESS THE EFFECT OF 
THIS BENEFIT. BENEFITS OF THIS RID- 
ER ARE NOT PAYABLE IF THE POLICY TO 
WHICH IT IS ATTACHED IS NOT IN EF- 
FECT. 

Statutory Authority G. S. 58-2-40(1); 58-55-30(a). 

.1008 MINIMUM STANDARDS 

FOR HOME HEALTH CARE 
BENEFITS 

(a) A policy providing benefits for home health 
care services may not limit or exclude benefits by: 

(1) requiring that the insured or claimant 
would need skilled care in a skilled 
nursing facility if home health care 
services were not provided; 

(2) requiring that the insured or claimant 
first or simultaneously receive nursing 
or therapeutic services in a home or 
community setting before home health 
care services are covered; 

(3) limiting eligible services to services 
provided by registered nurses or lic- 
ensed practical nurses; 

(4) requiring that a nurse or therapist pro- 
vide services covered by the policy that 
can be provided by a home health aide 
or by another licensed or certified home 
care worker acting within the scope of 
his or her licensure or certification. 

(5) requiring that the insured or claimant 
have an acute condition before home 
health care services are covered; 

(6) limiting benefits to services provided by 
Medicare-certified agencies or provid- 
ers; or 

(7) excluding coverage for adult day care 
services. 

(b) Home health care coverage may be applied 
to the non-home health care benefits provided in 
the policy when determing maximum coverage 



under the terms of the policy. Home health care 
benefits shall be offered in an amount of not less 
than twenty-five dollars ($25.00) per day . 

Statutory Authority G.S. 58-2-40(1); 58-55-30(a). 

.1009 REQUIREMENT TO OFFER 
INFLATION PROTECTION 

(a) No insurer may offer a policy unless the 
insurer also offers to the applicant the option to 
purchase a policy that provides for benefit levels to 
increase with benefit maximums or reasonable 
durations that are meaningful to account for rea- 
sonably anticipated increases in the costs of long- 
term care services covered by the policy. Insurers 
must offer to each applicant, at the time of pur- 
chase, the option to purchase a policy with an 
inflation protection feature no less favorable than 
one of the following: 

(1) Increases benefit levels annually, in a 
manner so that the increases are com- 
pounded annually at a minimum of 5 
percent; 

(2) Guarantees the insured individual the 
right to periodically increase benefit 
levels without providing evidence of 
insurability or health status as long as 
the option for the previous period has 
not been declined. f-m The amount of 
the additional benefit shall be no less 
than the difference between the existing 
policy benefit and the existing policy 
benefit compounded annually at a rate 
of at least five percent for the period 
beginning with the purchase of the 
existing policy benefit and extending 
until the year jn which the offer is 
made. 

(3) Covers a specified percentage of actual 
or reasonable charges and does not 
include a maximum specified indemnity 
amount or limit . 

(b) Where the policy is issued to a group, the 
required offer in Paragraph (a) of this Rule shall 
be made to the group policyholder; except, if the 
policy is issued to a group defined in G.S. 
58-55-20(3) other than to a continuing care facili- 
ty, the offering shall be made to each proposed 
certificate holder. 

(c) The offer in Paragraph (a) of this Rule is not 
required of life insurance policies or riders con- 
taining accelerated long-term care benefits. 

i±) life insuranc e polici e s or riders contain 

ing acc e l e rat e d long term car e b e n e fits. 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1169 



PROPOSED RULES 



(3) e xpen se incurred long t e rm oar e insur Statutory Authority G.S. 58-2-40(1); 58-55-30(a). 

nnce policie s . 

(d) Insurers shall include the following informa- 
tion in or with the outline of coverage: 

( 1 ) a graphic comparison of the benefit 
levels of a policy that increases benefits 
over the policy period with a policy that 
does not increase benefits. The graphic 
comparison shall show benefit levels 
over at least a 20-year period. 

(2) any expected premium increases or 
additional premiums to pay for automat- 
ic or optional benefit increases. If 
premium increases or additional premi- 
ums will be based on the attained age 
of the applicant at the time of the in- 
crease, the insurer shall also disclose 
the magnitude of the potential premi- 
ums the applicant would need to pay at 
ages 75 and 85 for benefit increases. 
An insurer may use a reasonable hypo- 
thetical or a graphic demonstration for 
the purposes of this disclosure. 

(3) Inflation protection benefit increases 
under a policy that contains such bene- 
fits shall continue throughout the period 
of coverage without regard to an insur- 
ed's age, an insured's claim status or 
claim history, or the length of time an 
insured has been covered under the 
policy. 

(4) An offer of inflation protection that 
provides for automatic benefit increases 
shall include an offer of a premium that 
the insurer expects to remain constant. 
This offer shall disclose in bold faced 
print that the premium may change in 
the future unless the premium is guar- 
anteed to remain constant. 

(e) Inflation protection provided in this Rule 
shall be included in a policy unless an insurer 
obtains a rejection of inflation protection, signed 
by the applicant, as follows: 

( 1 ) The rejection shall be considered a part 
of the application by addendum or 
supplement to the application: and 

(2) The rejection notice shall state: 

^1 have reviewed the outline of cover- 
age and the graphs that compare the 
benefits and premiums of this policy 
with and without inflation protection. 
Specifically, I have reviewed Plans 
, and I reject inflation protection." 



U70 7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



.1010 REQUIREMENTS FOR REPLACEMENT 

(a) Individual and direct response solicited long-term care insurance application forms shall include a 
question designed to elicit information as to whether the proposed policy is intended to replace any other 
accident and health or long-term care insurance policy presently in force. A supplementary applicant or other 
form to be signed by the applicant containing such a question may be used. 

(b) Upon determining that a sale will involve replacement, an insurer, other than an insurer using direct 
response solicitation methods, or its agent, shall furnish the applicant, prior to issuance or delivery of the 
individual policy, a notice regarding replacement of accident and health or long-term care coverage. One copy 
of such notice shall be retained by the applicant and an additional copy signed by the applicant shall be 
retained by the insurer. The required notice shall be provided in the following manner: 

"NOTICE TO APPLICANT REGARDING 
REPLACEMENT OF INDIVIDUAL 

ACCIDENT AND HEALTH OR 
LONG-TERM CARE INSURANCE 

According to [your application] [information you have furnished], you intend to lapse or otherwise terminate 
existing accident and health or long-term care insurance and replace it with an individual long-term care 
insurance policy to be issued by [company name]. Your new policy provides thirty (30) days within which 
you may decide, without cost, whether you desire to keep the policy. For your own information and 
protection, you should be aware of and seriously consider certain factors that may affect the insurance 
protection available to you under the new policy. 

You should review this new coverage carefully, comparing ]t with all accident and sickness or long-term care 
insurance coverage you now have, and terminate your present policy only if, after due consideration, you find 
that purchase of this long-term care coverage is a wise decision. 

I have reviewed your current medical or health insurance coverage. I believe the replacement of insurance 
involved in this transaction materially improves your position. My conclusion has taken into account the 
following considerations, which I call to your attention: 

1. Health conditions that you may presently have (preexisting conditions), may not be immediately 

or fully covered under the new policy. This could result in denial or delay in payment of benefits 
under the new policy, whereas a similar claim might have been payable under your present policy. 
2^ State law provides that your replacement policy or certificate may not contain new pre-existing 

conditions or probationary periods. The insurer will waive any time periods applicable to pre- 
existing conditions or probationary periods jn the new policy or certificate to the extent such time 
was spent under the original plan. 
2t3^ You may wish to secure the advice of your present insurer or its agent regarding the proposed 
replacement of your present policy. This is not only your right, but it is also in your best interest 
to make sure you understand all the relevant factors involved in replacing your present coverage. 
3t4^ If, after due consideration, you still wish to terminate your present policy and replace it with new 
coverage, be certain to truthfully and completely answer all questions on the application concerning 
your medical health history. Failure to include all material medical information on an application 
may provide a basis for the company to deny any future claims and to refund your premium as 
though your policy had never been in force. After the application has been completed and before 
you sign it, reread it carefully to be certain that all information has been properly recorded. 

(Signature of Agent, Broker or Other Representative) 

The above Notice to Applicant was delivered to me on: 



(Date) 



7:12 NORTH CAROLINA REGISTER September 15, 1992 UJi 



PROPOSED RULES 



(Applicant's Signature)" 

(c) Insurers using direct response solicitation methods shall deliver a notice regarding replacement of 
accident and health or long-term care coverage to the applicant upon issuance of the policy. The required 
notice shall be provided in the following manner: 

"NOTICE TO APPLICANT REGARDING 

REPLACEMENT OF ACCIDENT AND 

HEALTH OR LONG-TERM CARE 

INSURANCE 

According to [your application] [information you have furnished], you intend to lapse or otherwise terminate 
existing accident and health or long-term care insurance and replace it with the long-term care insurance policy 
delivered with this notice and issued by [company name]. Your new policy provides thirty (30) days within 
which you may decide, without cost, whether you desire to keep the policy. For your own information and 
protection, you should be aware of and seriously consider certain factors that may affect the insurance 
protection available to you under the new policy. 

You should review this new coverage carefully, comparing it with all accident and sickness or long-term care 
insurance coverage you now have, and terminate your present policy only ifj after due consideration, you find 
that purchase of this long-term care coverage is a wise decision. 

1 . Health conditions that you may presently have (preexisting conditions), may not be immediately 

or fully covered under the new policy. This could result in denial or delay in payment of benefits 
under the new policy, whereas a similar claim might have been payable under your present policy. 
2^ State law provides that your replacement policy or certificate may not contain new pre-existing 

conditions or probationary periods. The insurer will waive any time periods applicable to pre- 
existing conditions or probationary periods in the new coverage to the extent such time was spent 
under the original policy. 
3^3^ You may wish to secure the advice of your present insurer or its agent regarding the proposed 
replacement of your present policy. This is not only your right, but it is also in your best interest 
to make sure you understand all the relevant factors involved in replacing your present coverage. 
3^4^ [To be included only if the application is attached to the policy.] If. after due consideration, you 
still wish to terminate your present policy and replace it with new coverage, read the copy of the 
application attached to your new policy and be sure that all questions are answered fully and 
correctly. Omissions or misstatements in the application could cause an otherwise valid claim to 
be denied. Carefully check the application and write to [company name and address] within thirty 
(30) days if any information is not correct and complete, or if any past medical history has been 
left out of the application. 



(Company Name)" 

(d) When replacement is intended, the replacing insurer shall give written notice of the proposed 
replacement to the existing insurer. The existing policy shall be identified by the insurer, name of the insured, 
and policy number or address, including zip code. This notice shall be made within five business days after 
the date the application is received by the insurer or the date the policy is issued, whichever date is sooner. 

(e) The application shall include questions designed to elicit information as to whether or not another policy 
is intended to be replaced. 

Statutory Authority G.S. 58-2-40(1); 58-55-30(a). 



1172 7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



.1017 REQUIREMENTS FOR 
ADVERTISING 

Every person advertising long-term care insur- 
ance through any medium must file the advertising 
material wit h the insurer and receive written 
confirmation that the advertisement has been 
accepted by the Commissioner under 11 NCAC 12 
.0536. 

Statutory Authority G.S. 58-2-40(1): 58-55-30(a); 
58-55-30(j). 

.1018 STANDARDS FOR MARKETING 

(a) Every insurer providing long-term care 
insurance in this State directly or through its 
agents, shall: 

(1) Establish marketing procedures to 
assure that any comparison of policies 
by its agents will be fair and accurate. 
Establish marketing procedures to 



method of marketing having the effect 
of or tending to induce the purchase of 
insurance through force, fright, threat, 
whether express or implied; or through 
undue pressure to purchase or recom- 
mend the purchase of insurance. 
Cold lead advertising. Making direct 
or indirect use of any method of mar- 



12) 



ill 



assure excessive insurance is not sold 
or issued. 



m 



keting that fails to clearly disclose that 
a purpose of the method of marketing is 
solicitation of insurance and that contact 
will be made by an agent or insurer. 

Statutory Authority G.S. 58-2-40(1); 58-55-30(a); 
58-63-15(9). 

.1019 REPLACEMENT POLICIES 

Whenever a policy is replaced by another policy, 
the succeeding insurer must cover all persons 
covered under the previous policy and waive any 
new waiting periods for pre-existing conditions to 
the extent similar exclusions have been satisfied 
under the original policy. 



Display prominently on the cover page 
of every policy or outline of coverage 

the following cautionary notice in bold Statutory Authority G.S. 58-2-40(1 ); 58-55-30(a) 

face print stating: 

"NOTICE TO BUYER: THIS POLI- 
CY {OR RIDER) MAY NOT COV- 
ER ALL OF THE COSTS ASSOCI- 



. 1 020 SHOPPER'S GUIDE 

Every insurer providing long-term care insurance 



14} 



ATED WITH LONG-TERM CARE 
INCURRED BY YOU DURING THE 
PERIOD OF COVERAGE. YOU 
ARE ADVISED TO CAREFULLY 
READ AND REVIEW ALL POLICY 
(OR RIDER} LIMITATIONS." 
Inquire and otherwise make every 
reasonable effort to identify whether a 
prospective applicant or enrollee for 
long-term care insurance already has 
accident and sickness or long-term care 
insurance and the types and amounts of 
any such insurance. 



in this State shall, before sale, deliver a shopper's 
guide to every applicant. The guide shall be in the 
format developed by the NAIC. 

Statutory Authority G.S. 58-2-40(1); 58-55-30(a). 



Every insurer marketing long-term care 
insurance shall establish auditable pro- 



15] 



cedures for verifying compliance with 
marketing standards. 

(6) Every insurer providing long-term care 
insurance in this State shall at the time 
of solicitation provide the address and 
toll-free telephone number of the North 
Carolina Seniors' Health Insurance 
Information Program (SHIIP). 
(b) The following acts and practices are prohib- 
ited: 

(1) High pressure tactics. Employing any 



.1021 

Each 
ill 



12) 

13) 
14] 



REPORTING 

insurer shall on a statewide basis: 



15) 



Maintain records for each agent of that 
agent's amount of replacement sales as a 
percent of the agent's total annual sales. 
Maintain records of the amount of lapses 
of long-term care insurance policies sold 
by agents as a percent of the agent's total 
annual sales. 

Report annually by June 30th the 10 
percent of its agents with the greatest 
percentages of lapses and replacements. 
Report annually by June 30th the number 
of lapsed policies as a percent of its total 
annual sales and as a percent of [ts total 
number of policies In force as of the end 
of the preceding calendar year. 
Report annually by June 30th the number 
of replacement policies sold as a percent 
of its total annual sales and as a percent 
of its total number of policies in force as 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1173 



PROPOSED RULES 



of the end of the preceding calendar year. 

Statutory Authority- G.S. 58-2-40(1 ); 58-55-30(a): 
58-2-195(a). 

TITLE 15 A - DEPARTMENT OF 

ENVIRONMENT, HEALTH. AND 

NATURAL RESOURCES 

/Votice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for Health 
Services intends to. amend rules cited as 15A 
NCAC 13B .0101, 0103. .1202. .1203. .1207. 

1 he proposed effective date of this action is 
January 4. 1993. 

1 he public hearings will be conducted at the 
following dates, times and locations: 

October 13, 1992 

7:30 p. m. 

Room 204 Buncombe County Courthouse 

60 Court Plaza 

Asheville, NC 

(Main entrance locked at night: use 

ground floor side entrance on College Street) 

October 19, 1992 

1:30 p.m. 

Ground Floor Hearing Room 

Archdale Building 

512 N. Salisbury Street 

Raleigh. NC 

IXeason for Proposed Action: 

15A NCAC 13B .0101(15) - Deletion of definition 
of "infectious waste" is needed for consistency 
since "regulated medical waste " is used in Section 
. 1200 Medical Waste Management, to designate 
waste for which there are special packaging, 
labeling, storage, transportation and treatment 
requirements. 

15A NCAC 13B .0101(24) - The rule defines the 
term "radioactive waste material" by referencing 
the statutory definition. No other rule or standard 
is incorporated. 

15A NCAC 13B .0103 (c) - Use of "infectious 
waste" is not consistent with terminology in .1200 



Medical Waste Management. Under Section . 1200 
"regulated medical waste" which has not been 
treated in accordance with the Rules is banned 
from landfill disposal. 

15A NCAC 13B .1202 - The reference to Rule 
.1204(a)(1) is needed for clarity, to refer the 
reader to the appropriate requirements. 

The statement about compaction has been added 
for consistency with Rule . 1202(b), which prohibits 
compaction of containers of sharps. 

15 A NCAC 13B .1203 (a) - This change is pro- 
posed to allow health care facilities to utilize 
microwave technology for treating medical waste 
on-site. Major advantages of microwave processes 
include low cost of operation and the ability of the 
hospital to accomplish on-site management of the 
waste. Microwave technology utilizes microwaves 
to achieve thermal inactivation of microorganisms 
such as bacteria and viruses. It has been used at 
Forsyth Hospital for 18 months, and frequent 
monitoring has demonstrated consistent, reliable 
high-level disinfection of medical waste. 

15A NCAC 13B .1207 (1)0) - This change is 
needed so the reporting date will be the same as 
required for the county annual report. Otherwise, 
the treatment facility must report the same infor- 
mation twice. 

Comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P. O. Box 629, 
Raleigh, NC 27602-0629, (919) 733-4618. If you 
desire to speak at the public hearing, notify John 
P. Barkley at least 3 days prior to the public- 
hearing. Oral presentation lengths may be limited 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT .ALL INTER- 
ESTED AND POTENTIALLY AFFECTED PERSONS, 
GROUPS, BUSINESSES. ASSOCIATIONS, INSTITU- 



1174 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



TIONS, OR AGENCIES MAKE THEIR VIEWS AND 
OPINIONS KNOWN TO THE COMMISSION TOR 
HEALTH SERVICES THROUGH THE PUBLIC HEAP- 
ING AND COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL PROVISIONS OF 
THE PROPOSED RULES. THE COMMISSION MAY 
MAKE CHANGES TO THE RULES AT THE COMMIS- 
SION MEETING IF THE CHANGES COMPLY WITH 
G.S. 15OB-21.20. 



CHAPTER 13 



SOLID WASTE MANAGE- 
MENT 



SUBCHAPTER 13B - SOLID WASTE 
MANAGEMENT 

SECTION .0100 - GENERAL PROVISIONS 

.0101 DEFECTIONS 

The definitions in G.S. 130A-290and the follow- 
ing definitions shall apply throughout this Sub- 
chapter: 



(1) 



(2) 



(3) 



(4) 



(5) 



(6) 



(7) 
(8) 



(9) 



"Airport" means public-use airport open 
to the public without prior permission 
and without restrictions within the physi- 
cal capacities of available facilities. 
"Blood products" means all bulk blood 
and blood products. 

"Cell" means compacted solid waste 
completely enveloped by a compacted 
cover material. 

"Disposal" means the discharge, deposit, 
injection, dumping, spilling, leaking, or 
placing of any solid waste into or on any 
land so that such solid waste or any 
constituent thereof may enter the environ- 
ment or be emitted into the air or dis- 
charged into any water, including 
groundwaters. 

"Demolition landfill" means a sanitary 
landfill that is limited to receiving 
stumps, limbs, leaves, concrete, brick, 
wood, uncontaminated earth or other 
solid wastes as approved by the Division. 
"Division" means the Director of the 
Division of Solid Waste Management or 
the Director's authorized representative. 
"Explosive gas" means Methane (CH 4). 
"Federal act" means the Resource Con- 
servation and Recovery Act of 1976, 
P.L. 94-580, as amended. 
"Floodplain" means the lowland and 
relatively flat areas adjoining inland and 
coastal waters, including flood-prone 
areas of offshore islands, which are 
inundated by the 100-year flood. 



(10) "Garbage" means all putrescible wastes, 
including animal offal and carcasses, and 
recognizable industrial by-products, but 
excluding sewage and human waste. 

(11) "Hazardous waste" means a solid waste, 
or combination of solid wastes, which 
because of its quantity, concentration, or 
physical, chemical or infectious charac- 
teristics may: 

(a) cause or significantly contribute to an 
increase in mortality or an increase in 
serious irreversible or incapacitating 
reversible illness; or 

(b) pose a substantial present or potential 
hazard to human health or the environ- 
ment when improperly treated, stored, 
transported, or disposed of, or other- 
wise managed. 

(12) "Hazardous waste facility" means a facil- 
ity for the storage, collection, processing, 
treatment, recycling, recovery or disposal 
of hazardous waste. 

(13) "Hazardous waste landfill facility" means 
any facility or any portion of a facility 
for disposal of hazardous waste on or in 
land in accordance with rules promulgat- 
ed under this article. 

(14) "Incineration" means the process of 
burning solid, semi-solid or gaseous 
combustible wastes to an inoffensive gas 
and a residue containing little or no 
combustible material. 

f4-S-) "Inf e ctious waste" m e an s a solid wa s t e 

capabl e of producing an infectious die 
ease^ — Th e typ e s of wast e designat e d a s 

inf e ctious ar e : microbiological waste, 

pathological wast e , — blood products and 



s harp s . 

f+§) (15) "Leachate" means any liquid, includ- 
ing any suspended components in liquid, 
that has percolated through or drained 
from solid waste. 

{¥t) (16) "Lower explosive limit" means the 
lowest percent by volume of a mixture of 
explosive gases which will propogate a 
flame in air at 25 °C and atmospheric 
pressure. 

ft&) (17) "Microbiological wastes" means and 
includes cultures and stocks of etiologic 
agents. The term includes cultures of 
specimens from medical, pathological, 
pharmaceutical, research, commercial, 
and industrial laboratories. 

fW) (18) "One-hundred year flood" means a 
flood that has a 1 percent or less chance 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1175 



PROPOSED RULES 



of recurring in any year or a flood of a 
magnitude equalled or exceeded once in 
100 years on the average over a signifi- 
cantly long period. 

(30) (19) "Open burning" means any fire 
wherein the products of combustion are 
emitted directly into the outdoor atmo- 
sphere and are not directed thereto 
through a stack or chimney, incinerator, 
or other similar devices. 

{~A-j (20) "Open dump" means a solid waste 
disposal site that does not have a permit. 
and/ or does not comply with the rules set 
forth in this Subchapter. 

(33) (21) "Pathologieal wastes" means and 
includes human tissues, organs, body 
parts, secretions and excretions, blood 
and body fluids that are removed during 
surgery and autopsies; and the carcasses 
and body parts of all animals that were 
exposed to pathogens in research, were 
used in the production of biologicals or 
in the in vivo testing of pharmaceuticals, 
or that died of known or suspected infec- 
tious disease. 

[22] "Person" means an individual, corpo- 
ration, company, association, partnership, 
unit of local government, state agency, 
federal agency, or other legal entity. 
(23) "Putrescible" means solid waste 
capable of being decomposed by microor- 
ganisms with sufficient rapidity as to 
cause nuisances from odors and gases, 
such as kitchen wastes, offal and carcass- 
es. 

(3§) (24) "Radioactive waste material" means 
any waste containing radioactive material 
as defined in G.S. 104E-5(14h which is 
udopt e d by r e f e rence in accordanc e with 
G.S. 150B 1 4 (c) . 

(36) [25]" Recycling" means the process by 
which recovered resources are 
transformed into new products in such a 
manner that the original products lose 
their identity. 

(37-) (26) "Refuse" means all non-putrescible 
waste . 

(3&) (27) "Respondent" means the person 
against whom an administrative penalty 
has been assessed. 

(394 (28) "Resources recovery" means the 
process of obtaining material or energy 
resources from discarded solid waste 
which no longer has any useful life in its 
present form and preparing such solid 



(35) 



(34) 



waste for recycling. 
00) (29) "Runoff" means the portion of pre- 
cipitation that drains from an area as 
surface flow. 

(54) (30) "Sanitary landfill" means a facility 
for disposal of solid waste on land in a 
sanitary manner in accordance with Arti- 
cle 9 of Chapter 130A and this Subchap- 
ter. 

(53) (31 ( "Sediment" means solid particulate 
matter both mineral and organic, that has 
been or is being transported by water, 
air, gravity, or ice from its site of origin. 

(55) (32) "Sharps" means and includes needles, 
syringes, and scalpel blades. 

(34) (33) "Siltation" means sediment resulting 
from accelerated erosion which is 
settleable or removable by properly 
designed, constructed, and maintained 
control measures and which has been 
transported from its point of origin within 
the site land-disturbing activity and which 
has been deposited, or is in suspension in 
water. 

(5£) (34) "Sludge" means any solid, semisolid 
or liquid waste generated from a munici- 
pal, commercial, institutional, or industri- 
al wastewater treatment plant, water 
supply treatment plant, or air pollution 
control facility or any other such waste 
having similar characteristics and effect. 

(56) (35) "Solid waste" means any hazardous 
or nonhazardous garbage, refuse, or 
sludge from a waste treatment plant, 
water supply treatment plant, or air 
pollution control facility, domestic sew- 
age and sludges generated by the treat- 
ment thereof in sanitary sewage collec- 
tion, treatment and disposal systems, and 
other material that is either discarded or 
is being accumulated, stored or treated 
prior to being discarded, or has served its 
original intended use and is generally 
discarded, including solid, liquid, semi- 
solid or contained gaseous material re- 
sulting from industrial, institutional, 
commercial and agricultural operations, 
and from community activities. The term 
does not include: 

(a) Fowl and animal fecal waste; or 

(b) Solid or dissolved material in: 

(i) domestic sewage and sludges generat- 
ed by the treatment thereof in sanitary 
sewage collection, treatment and 
disposal systems which are designed 



1176 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



to discharge effluents to the surface (40) 

waters; 
(ii) irrigation return flows; and (44) 

(iii) wastewater discharges and the sludges 
incidental thereto and generated by 
the treatment thereof which are point 
sources subject to permits granted 
under Section 402 of the Federal 
Water Pollution Control Act, as (42) 

amended (P.L. 92-500), and permits 
granted under G.S. 143-215.1 by the 
Environmental Management Commis- (43) 

sion; except that any sludges that 
meet the criteria for hazardous waste 
under the Federal Resource Conserva- 
tion and Recovery Act (P.L. 94-580) 
as amended, shall also be a solid 
waste for the purposes of this Article; 
or 

(c) Oils and other liquid hydrocarbons (44) 
controlled under Article 21 A of Chapter 

143 of the North Carolina General 
Statutes; except that any such oils or 
other liquid hydrocarbons that meet the (45-) 

criteria for hazardous waste under the 
Federal Resource Conservation and 
Recovery Act (P.L. 94-580) as amend- 
ed, shall also be a solid waste for the (46) 
purposes of this Article; or 

(d) Any radioactive material as defined by 
the North Carolina Radiation Protection 
Act, G.S. 104E-1 through 104E-23; or 

(e) Mining refuse covered by the North (47) 
Carolina Mining Act, G.S. 74-46 

through 74-68 and regulated by the 
North Carolina Mining Commission (as 
defined under G.S. 143B-290); except 
that any specific mining waste that (48) 

meets the criteria for hazardous waste 
under the Federal Resource Conserva- 
tion and Recovery Act (P.L. 94-580) as 
amended, shall also be a solid waste for 
the purposes of this Article. 
03) (36) "Solid waste collector" means any 
person who collects or transports solid 
waste by whatever means, including but 
not limited to, highway, rail, and naviga- 
ble waterway. 
(3&) (37) "Solid waste disposal site", or "site" 
means any place at which solid wastes 
are disposed of by incineration, sanitary (49) 

landfill, demolition landfill or any other 
acceptable method. 
(39) (38) "Solid waste generation" means the 
act or process of producing solid waste. 



(39) "Solid waste generator" means any 
person who produces solid waste. 
(40) "Solid waste management" means 
purposeful, systematic control of the 
generation, storage, collection, transport, 
separation, treatment, processing, recy- 
cling, recovery and disposal of solid 
waste. 

(41) "Solid waste management facility" 
means land, personnel, and equipment 
used in the management of solid waste. 
(42) "Spoiled food" means any food which 
has been removed from sale by the Unit- 
ed States Department of Agriculture, 
North Carolina Department of Agricul- 
ture, Food and Drug Administration, or 
any other regulatory agency having juris- 
diction in determining that food is unfit 
for consumption. 

(43) "Steam sterilization" means treatment 
by steam at high temperatures for suffi- 
cient time to render infectious waste 
non-infectious. 

(44) "Storage" means the containment of 
solid waste, either on a temporary basis 
or for a period of years, in such a man- 
ner as not to constitute disposal. 
(45) "Transfer facility" means a perma- 
nent structure with mechanical equipment 
used for the collection or compaction of 
solid waste prior to the transportation of 
solid waste for final disposal. 
(46) "Treatment and processing facility" 
means a facility used in the treatment and 
processing of putrescible solid waste for 
final disposal or for utilization by re- 
claiming or recycling. 
(47) "Treatment" means any method, 
technique, or process, including neutral- 
ization, designed to change the physical, 
chemical, or biological character or 
composition of any solid waste so as to 
neutralize such waste or so as to render 
such waste non-hazardous, safer for 
transport, amenable for recovery, amena- 
ble for storage, or reduced in volume. 
Such term includes any activity or pro- 
cessing designed to change the physical 
form or chemical composition of solid 
waste so as to render it non-hazardous. 
(48) "Unit of local government" means a 
county, city, consolidated city-county, 
sanitary district, or other local political 
subdivision, authority or agency of local 
government. 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1177 



PROPOSED RULES 



{30} (49) "Vector" means a carrier, usually an 
arthropod, that is capable of transmitting 
a pathogen from one organism to anoth- f64-) 

er. 

{34-t (50) "Water supply watershed" means an 

area from which water drains to a point f62-) 

or impoundment, and the water is then 
used as a source for a public water sup- 
ply. 

{32} (51) "Water table" means the upper limit (63-) 

of the portion of the ground wholly satu- 
rated with water. 

{33} (52)" Working face" means that portion of 

the land disposal site where solid wastes {644 

are discharged, spread, and compacted 
prior to the placement of cover material. 

f§4-> (53) "Agricultural Waste" means waste (65-) 

materials produced from the raising of 
plants and animals, including animal 
manures, bedding, plant stalks, hulls, and 
vegetable matter. {66) 

{33} (54) "Backyard Composting" means the 
on-site composting of yard waste from 
residential property by the owner or 
tenant for non-commercial use. 

{36} (55) "Compost" means decomposed, 
humus-like organic matter, free from 
pathogens, offensive odors, toxins or f67-) 

materials harmful at the point of end use. 
Compost is suitable for use as a soil 
conditioner with varying nutrient values. 

(S?) (56) "Composting Pad" means a surface, (6&) 

whether soil or manufactured, where the 
process of composting takes place, and 
where raw and finished materials are 
stored. 

f5$-> (57) "Compost Facility" means a solid 
waste facility which utilizes a controlled 
biological process of degrading {€9} 

non-hazardous solid waste. A facility 
may include materials processing and 
hauling equipment; structures to control 
drainage; and structures to collect and 
treat leachate; and storage areas for the 
incoming waste, the final products, and 
residual materials. 

f5% (58) "Composting" means the controlled f7Q) 

decomposition of organic waste by natu- 
rally occurring bacteria, yielding a stable, 
humus-like, pathogen-free final product 
resulting in volume reduction of 30 - 75 
percent. 

{604 (59) "Curing" means the final state of 
composting, after the majority of the 
readily metabolized material has been {7+4 



decomposed, in which the compost mate- 
rial stabilizes and dries. 
£60] "Pathogens" means organisms that 
are capable of producing infection or 
diseases, often found in waste materials. 
(61) "Silviculture Waste" means waste 
materials produced from the care and 
cultivation of forest trees, including bark 
and woodchips. 

(62) "Soil Group I" means soil group I as 
defined in 15A NCAC 13B 
.0807(a)(1)(A) of the Septage Manage- 
ment Rules. 

(63] "Windrow" means an elongated 
compost pile (typically eight feet wide by 
ten feet high). 

(64) "Yard Waste" means "Yard Trash" 
and "Land-clearing Debris" as defined in 
G.S. 130A-290, including stumps, limbs, 
leaves, grass, and untreated wood. 
(65) "Residues from Agricultural Products 
and Processing" means solids, semi-solids 
or liquid residues from food and bever- 
age processing and handling; silviculture; 
agriculture; and aquaculture operations 
that are non-toxic, non-hazardous, and 
contain no domestic wastewater. 
(66) "Treatment and Processing Waste" 
means waste that is a residual solid from 
a wastewater treatment or pretreatment 
facility. 

(67) "Industrial Process Waste" means any 
solid, semi-solid, or liquid waste generat- 
ed by a manufacturing or processing 
plant which is a result of the manufactur- 
ing or processing process. This defini- 
tion does not include packaging materials 
associated with such activities. 
(68) "Mulch" means a protective covering 
of various substances, especially organic, 
to which no plant food has been added 
and for which no plant food is claimed. 
Mulch is generally placed around plants 
to prevent erosion, compaction, evapora- 
tion of moisture, freezing of roots, and 
weed growth. 

(69) "Soil Scientist" means an individual 
who is a Certified Professional Soil Sci- 
entist or Soil Specialist by American 
Registry of Certified Professional in 
Agronomy. Crops. and Soils 
( ARCPACS) or an individual that demon- 
strates equivalent experience or educa- 
tion. 
(70] "Foreign Matter" means metals. 



1178 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



glass, plastics, rubber, bones, and leath- 
er, but does not include sand, grit, rocks 
or other similar materials. 

Statutory Authority G.S. 130A-294. 

.0103 GENERAL CONDITIONS 

(a) All solid waste shall be stored, collected, 
transported, separated, processed, recycled, recov- 
ered, and disposed of in a manner consistent with 
the requirements of these Rules. The Division of 
Solid Waste Management is responsible for the 
enforcement of these Rules. 

(b) No radioactive waste material shall be 
collected and transported, stored, treated, pro- 
cessed, disposed of or reclaimed, except as specifi- 
cally authorized by a radioactive material license 
issued by the Division of Radiation Protection, 
DEHNR. 

(c) Solid waste shall be disposed of at a solid 
waste disposal site in accordance with the Solid 
Waste Management Act and the Federal Act. 
Hazardous waste, lead acid batteries, liquid waste, 
including used oil, infectious regulated medical 
waste, and any other wastes that may pose a threat 
to the environment or the public health, as deter- 
mined by the Division, are prohibited from dispos- 
al at a solid waste disposal site. 

(d) The Division has developed a "Procedure 
and Criteria for Waste Determination" which is 
used to determine whether a waste is: 

(1) hazardous as defined by 15A NCAC 
13 A, and 

(2) suitable for disposal at a solid waste 
management facility. 

Information required for evaluation includes the 
identity of the generator, identity of the waste and 
how it was generated, and laboratory results 
indicating the chemical constituency of the waste. 
Copies of "Procedure and Criteria for Waste 
Determination" may be obtained from and inspect- 
ed at the Division, P.O. Box 27687. Raleigh, N.C. 
27611-7687. 

(A) Waste which is generated outside the 
population and geographic area which 
the solid waste management facility is 
permitted to serve under .0504(1 )(g). 

(B) Waste from a transfer facility other 
than a facility permitted under these 
Rules. 

(C) Waste generated by a new generator 
inside the population and geographic 
area which the Solid Waste Manage- 
ment Facility is permitted to serve if 
the components of the waste cannot 



be readily determined otherwise. 

(D) Waste generated through a change in 
industrial process by an existing 
generator, provided the components 
of the waste cannot be readily deter- 
mined otherwise. 

(E) A load of waste which a sanitary 
landfill operator suspects may contain 
materials which the facility is not 
permitted to receive. 

(F) Requests by a generator interested in 
transporting waste to an identified 
solid waste management facility for 
treatment and processing, transfer or 
disposal. 

(G) All sludges except sludge from water 
treatment plants. 

(H) Other wastes deemed appropriate by 
the Division for testing before trans- 
porting to a solid waste management 
facility. 

(e) No person shall dispose or cause the disposal 
of solid waste in or on waters in a manner that 
results in solid waste's entering waters or being 
deposited upon lands of the state. 

(f) White Goods shall not be disposed of at a 
solid waste disposal site after 1, January, — 1-994- 
January 1, 1991 . 

(g) By July 1. 1991, all solid waste management 
facilities owned and operated by or on behalf of a 
local government, except facilities which will 
receive no waste after July 1, 1992, shall install 
scales and weigh all solid waste when it is received 
at the facility. 

(h) By July 1, 1991, each local government 
operating a permitted solid waste management 
facility shall initiate a solid waste recycling pro- 
gram which shall be designed to achieve the goal 
of recycling at least 25 percent of the municipal 
solid waste stream by January 1, 1993, prior to 
final disposal or incineration at a solid waste 
disposal facility. 

(i) After January 1, 1998, all active sanitary 
landfills (except demolition landfills) shall be 
equipped with liners, leachate collection systems 
and final cover systems. 

Statutory Authority G.S. 130A-294; 

SECTION .1200 - MEDICAL WASTE 
MANAGEMENT 

.1202 GENERAL REQUIREMENTS FOR 
MEDICAL WASTE 

(a) Medical waste is subject to all applicable 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1179 



PROPOSED RULES 



rules in 15A NCAC 13B. 

(b) At the generating facility, sharps shall be 
placed in a container which is rigid, leak-proof 
when in an upright position and puncture-resistant. 
Contained sharps shall not be compacted prior to 
off-site transportation. After leaving the generating 
facility, the container and its contents shall be 
handled in a manner that avoids human contact 
with the sharps. 

(c) Blood and body fluids in individual contain- 
ers of 20 ml or less which are not stored in a 
secured area restricted to authorized personnel 
prior to off-site transportation shall be packaged in 
accordance with the regulated medical waste 
packaging requirements as described in Rule 
. 1204(a)(l ) or in a container suitable for sharps. 
Packages and containers of blood and body fluids 
shall not be compacted prior to off-site transporta- 
tion. 

(d) Regulated medical waste shall not be com- 
pacted. 

Statutory Authority G.S. 130 A- 309.26. 

.1203 GENERAL REQUIREMENTS 
FOR REGULATED MEDICAL 
WASTE 

(a) Regulated medical waste shall be treated 
prior to disposal. Acceptable methods of treatment 
are as follows: 

(1) blood and body fluids in individual 
containers in volumes greater than 20 
ml - Incineration or sanitary sewage 
systems, provided the sewage treatment 
authority is notified; 

(2) microbiological waste - Incineration, 
steam sterilization, microwave treat- 
ment, or chemical treatment; 

(3) pathological wastes - Incineration. 

(b) Other methods of treatment shall require 
approval by the Division. 

(c) Regulated medical waste treated in accor- 
dance with Paragraph (a) of this Rule may be 
managed in accordance with 15A NCAC 13B 
.0100 - .0700. 

(d) Crematoriums are not subject to the require- 
ments of Rule .1207(3) of this Section. 

(e) A person who treats Regulated medical waste 
at the generating facility or within an integrated 
medical facility is not subject to the storage and 
record keeping requirements of Rule .1207(1) of 
this Section. 

(f) Generating facilities and integrated medical 
facilities in operation on October 1, 1990 that 
incinerate Regulated medical waste are not subject 



to the requirements of Rule . 1207(3)(a-l) of this 
Section until January 1, 1995. 

Statutory Authority G.S. 130A-309.26. 

.1207 OPERATIONAL REQ/REGULATED 
MEDICAL WASTE TREATMENT 
FACILITIES 

A person who treats Regulated medical waste 
shall meet the following requirements for each 
type of treatment in addition to the requirements in 
Rule .1203 of this Section. 

(1) General requirements: 

(a) Refrigeration at an ambient temperature 
between 35 and 45 degrees Fahrenheit 
shall be maintained for Regulated medi- 
cal waste not treated within seven cal- 
endar days after shipment. 

(b) Regulated medical waste shall be stored 
prior to treatment for no more than 
seven calendar days after receipt. 

(c) Regulated medical waste shall be stored 
no longer than seven calendar days 
after treatment. 

(d) Only authorized personnel shall have 
access to areas used to store Regulated 
medical waste. 

(e) All areas used to store Regulated medi- 
cal waste shall be kept clean. Neither 
carpets nor floor coverings with seams 
shall be used in storage areas. Vermin 
and insects shall be controlled. 

(f) Prior to treatment, all Regulated medi- 
cal waste shall be confined to the stor- 
age area. 

(g) All floor drains shall discharge directly 
to an approved sanitary sewage system. 
Ventilation shall be provided and shall 
discharge so as not to create nuisance 
odors. 

(h) A plan shall be prepared, maintained 
and updated as necessary to ensure 
continued proper management of Regu- 
lated medical waste at the facility, 
(i) Records of Regulated medical waste 

shall be maintained for each shipment 
and shall include the information listed 
in this Paragraph. This information 
shall be maintained at the treatment 
facility for no less than three years, 
(i) name and address of generator; 
(ii) date received; 

(iii) amount of waste received by number 
of packages (piece count) from each 
generator; 



1180 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



G) 



(2) 
(a) 



(b) 



(c) 



(d) 



(e) 



(f) 



(3) 
(a) 



(b) 



(iv) date treated; 

(v) name and address of ultimate disposal 
facility. 
Regulated medical waste treatment 
facilities that treat waste generated 
off-site shall submit to the Division an 
annual report, by March 1 August I of 
each year that summarizes the informa- 
tion collected under Subparagraph (l)(i) 
of this Rule for the previous calendar 
year. The report shall be submitted on 
a form prescribed and approved by the 
Division. 
Steam sterilization requirements: 
Steam under pressure shall be provided 
to maintain a minimum temperature of 
250 degrees Fahrenheit for 45 minutes 
at 15 pounds per square inch of gauge 
pressure during each cycle; or other 
combinations of parameters that are 
shown to effectively treat the waste. 
The steam sterilization unit shall be 
provided with a chart recorder which 
accurately records time and temperature 
of each cycle. 

The steam sterilization unit shall be 
provided with a gauge which indicates 
the pressure of each cycle. 
Monitoring under conditions of full 
loading for effectiveness of treatment 
shall be performed no less than once 
per week through the use of biological 
indicators or other methods approved 
by the Division. 

Regulated medical waste may be dis- 
posed of until or unless monitoring as 
required in Subparagraph(2)(d) of this 
Rule does not confirm effectiveness. 
A log of each test of effectiveness of 
treatment performed shall be maintained 
and shall include the type of indicator 
used, date, time, and result of test. 
Incineration requirements: 
Regulated medical waste shall be sub- 
jected to a burn temperature in the 
primary chamber of not less than 1200 
degrees Fahrenheit. 

Automatic auxiliary burners which are 
capable, excluding the heat content of 
the wastes, of independently maintain- 
ing the secondary chamber temperature 
at the minimum of 1800 degrees Fahr- 
enheit shall be provided. Interlocks or 
other process control devices shall be 
provided to prevent the introduction of 



waste material to the primary chamber 
until the secondary chamber achieves 
operating temperature. 

(c) Gases generated by the combustion 
shall be subjected to a minimum tem- 
perature of 1 800 degrees Fahrenheit for 
a period of not less than one second. 

(d) Continuous monitoring and recording of 
primary and secondary chamber tem- 
peratures shall be performed. Monitor- 
ing data shall be maintained for a peri- 
od of three years. 

(e) An Air Quality Permit shall be obtained 
from the Division of Environmental 
Management prior to construction and 
operation. 

(f) A plan of procedures for obtaining 
representative weekly and monthly 
composite ash samples shall be submit- 
ted for Division approval prior to sys- 
tem start-up and operation. If design or 
operation of the system is substantially 
changed or modified, or if the waste 
composition, loading rate or loading 
method are substantially changed, the 
ash sampling plan will be subject to 
modification to accommodate such 
changes. Ash sampling procedures 
shall be initiated at the time the inciner- 
ation system is first started for normal 
operation. 

(g) As a minimum, a representative sample 
of about one kilogram (2.2 lb) shall be 
collected once for every eight hours of 
operation of a continuously fed inciner- 
ator; once for every 24 hours of opera- 
tion of an intermittently operated incin- 
erator; or once for every batch of a 
batch loaded incinerator. The samples 
shall be collected from either the dis- 
charge of the ash conveyor or from the 
ash collection containers prior to dis- 
posal. Samples shall be composited in 
a closed container weekly and shall be 
thoroughly mixed and reduced to a 
representative sample. These shall be 
composited into monthly samples. For 
the first three months of operation, each 
monthly sample shall be analyzed. 

(h) For the remainder of the first year of 
operation, representative monthly sam- 
ples shall be composited into a quarter- 
ly sample and analyzed at the end of 
each quarter. 

(i) After the first year, representative 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1181 



PROPOSED RULES 



samples shall be analyzed at least twice 
a year. 

(j) Ash samples shall be tested in accor- 

dance with provisions of 15A NCAC 
13B .0103(e) and submitted to the N.C. 
Solid Waste Section. 

(k) A log shall be kept documenting ash 
sampling, which shall include the date 
and time of each sample collected; the 
date, time, and identification number of 
each composite sample; and the results 
of the analyses, including laboratory 
identification. 

(1) Records of stack testing as prescribed 

in the Air Quality Permit shall be main- 
tained at the facility. 

(m) Existing generating facilities shall con- 
duct one weekly representative ash 
sampling and testing in accordance with 
Subparagraphs (3)(f). (g) and (j) of this 
Rule annually during the second quarter 
of each calendar year. 
(4) Chemical treatment requirements: 

(a) Cultures of throat, urine, sputum, skin 
and genitourinal tract which contain 
only the following organisms; N. gon- 
orrhea. E. coli, staphylococcus, pro- 
teus. Candida albicans, and B. cereus 
or normal flora in individual plates or 
tubes containing 5-20 ml media shall be 
covered, for a minimum of one hour, 
with a 1 :5 dilution of household bleach 
(5.25 percent sodium hypochlorite) in 
water. The solution shall remain on the 
treated plates which are to be stacked in 
a plastic bag prior to disposal. The bag 
is to be sealed to prevent leakage. 

(b) Approval for other types of chemical 
treatment must be obtained from the 
Division. Request for approval must be 
substantiated by results of demonstrated 
effectiveness of the chemical to treat the 
specific microbiological agent(s) of 
concern for the waste disposed. Con- 
sideration must be given to such factors 
as temperature, time of contact, pH, 
concentration and the presence and state 
of dispersion, penetrability and reactivi- 
ty of organic material at the site of 
application. 

(c) A written plan must be maintained at 
the facility and units of the facility as 
necessary to ensure consistent proce- 
dures are used to treat the waste. 



Statutory Authority G.S. 130A-309.26. 

* * * * * * * * * * * * * * * * * * 

iVotice « hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for Health 
Services intends to. adopt rules cited as 15A 
NCAC 13B .0560 - .0566, amend rules cited as 
15A NCAC 13B .0101. 0103. .0201 - .0202, .0501 
- .0503 and repeal rules cited as 15 A NCAC 13B 
.0506- .0507. 

1 he proposed effective date of this action is 
January 4, 1993. 

1 he public hearings will be conducted at the 
following dates, times and locations: 

October 13, 1992 

7:30 p.m. 

Room 204 Buncombe County Courthouse 

60 Court Plaza 

Asheville. NC 

(Main entrance locked at night; use 

ground floor side entrance on College Street) 

October 19, 1992 

1:30 p.m. 

Ground Floor Hearing Room 

Archdale Building 

512 N. Salisbury Street 

Raleigh, NC 

MXeason for Proposed Action: To clarify existing 
Division Rules in order to comply with existing 
EPA Rules and State Statutes. 

Comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley. Department of Justice, P. O. Box 629, 
Raleigh, NC 27602-0629, (919) 733-4618. If you 
desire to speak at the public hearing, notify John 
P. Barkley at least 3 days prior to the public 
hearing. Oral presentation lengths may be limited 
depending on the nutnber of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 



1182 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



clarify previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL INTERESTED 
AND POTENTIALLY AFFECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTITUTIONS, OR 
AGENCIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO THE COMMISSION FOR HEALTH 
SERVICES THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY SUPPORT 
OR OPPOSE ANY OR ALL PROVISIONS OF THE 
PROPOSED RULES. THE COMMISSION MAY MAKE 
CHANGES TO THE RULES AT THE COMMISSION 
MEETING IF THE CHANGES COMPLY WITH G.S. 
J50B-21.2(f). 

CHAPTER 13 - SOLID WASTE 
MANAGEMENT 

SUBCHAPTER 13B - SOLID WASTE 
MANAGEMENT 

SECTION .0100 - GENERAL PROVISIONS 

.0101 DEFINITIONS 

The definitions in G.S. 130A-290 and the 
following definitions shall apply throughout this 
Subchapter: 

(1) "Airport" means public-use airport 
open to the public without prior permis- 
sion and without restrictions within the 
physical capacities of available 
facilities. 

(2) "Blood products" means all bulk blood 
and blood products. 

(3) "Cell" means compacted solid waste 
completely enveloped by a compacted 
cover material. 

(4) "Disposal" means the discharge, 
deposit, injection, dumping, spilling, 
leaking, or placing of any solid waste 
into or on any land so that such solid 
waste or any constituent thereof may 
enter the environment or be emitted 
into the air or discharged into any 
water, including groundwater. 

(5) "Demolition landfill" means a sanitary 
landfill that is limited to receiving 
stumps, limbs, leaves, concrete, brick, 
wood, uncontaminated earth or other 
solid wastes as approved by the 
Division. 

(6) "Division" means the Director of the 
Division of Solid Waste Management 



or the Director's authorized 
representative. 

(7) "Explosive gas" means Methane (CH 
4). 

(8) "Federal act" means the Resource 
Conservation and Recovery Act of 
1976, P.L. 94-580. as amended. 

(9) "Floodplain" means the lowland and 
relatively flat areas adjoining inland and 
coastal waters, including flood-prone 
areas of offshore islands, which are 
inundated by the 100-year flood. 

(10) "Garbage" means all putrescible wastes, 
including animal offal and carcasses, 
and recognizable industrial by-products, 
but excluding sewage and human waste. 

(11) "Hazardous waste" means a solid 
waste, or combination of solid wastes, 
which because of its quantity, 
concentration, or physical, chemical or 
infectious characteristics may: 

(a) cause or significantly contribute to an 
increase in mortality or an increase in 
serious irreversible or incapacitating 
reversible illness; or 

(b) pose a substantial present or potential 
hazard to human health or the 
environment when improperly treated, 
stored, transported, or disposed of, or 
otherwise managed. 

(12) "Hazardous waste facility" means a 
facility for the storage, collection, 
processing, treatment, recycling, 
recovery or disposal of hazardous 
waste. 

(13) "Hazardous waste landfill facility" 
means any facility or any portion of a 
facility for disposal of hazardous waste 
on or in land in accordance with rules 
promulgated under this article. 

(14) "Incineration" means the process of 
burning solid, semi-solid or gaseous 
combustible wastes to an inoffensive 
gas and a residue containing little or no 
combustible material. 

(15) "Infectious waste" means a solid waste 
capable of producing an infectious 
disease. The types of waste designated 
as infectious are: microbiological 
waste, pathological waste, blood 
products and sharps. 

(16) "Leachate" means any liquid, including 
any suspended components in liquid. 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1183 



PROPOSED RULES 



that has percolated through or drained 
from solid waste. 

(17) "Lower explosive limit" means the 
lowest percent by volume of a mixture 

of explosive gases which will propagate (26) 

a flame in air at 25 °C and atmospheric 

pressure. 

(18) "Microbiological wastes" means and 
includes cultures and stocks of etiologic 

agents. The term includes cultures of (27) 

specimens from medical, pathological, 
pharmaceutical, research, commercial, (28) 

and industrial laboratories. 

(19) "One-hundred year flood" means a 

flood that has a 1 percent or less (29) 

chance of recurring in any year or a 

flood of a magnitude equalled or 

exceeded once in 100 years on the 

average over a significantly long 

period. 

(20) "Open burning" means any fire wherein (30) 
the products of combustion are emitted 

directly into the outdoor atmosphere 

and are not directed thereto through a (31) 

stack or chimney, incinerator, or other 

similar devices. 

(21) "Open dump" means a solid waste 
disposal site that does not have a 

permit, and/or or does not comply with (32) 

the rules set forth in this Subchapter. 

(22) "Pathological wastes" means and 
includes human tissues, organs, body 
parts, secretions and excretions, blood 

and body fluids that are removed (33) 

during surgery and autopsies; and the 

carcasses and body parts of all animals (34) 

that were exposed to pathogens in 

research, were used in the production 

of biologicals or in the in vivo testing 

of pharmaceuticals, or that died of 

known or suspected infectious disease. 

(23) "Person" means an individual, 
corporation, company, association, 
partnership, unit of local government, 

state agency, federal agency, or other (35) 

legal entity. 

(24) "Putrescible" means solid waste capable 
of being decomposed by 
microorganisms with sufficient rapidity 
as to cause nuisances from odors and 
gases, such as kitchen wastes, offal and 
carcasses. 

(25) "Radioactive waste material" means any (36) 



waste containing radioactive material as 

defined in G.S. 104E-5(14) , which is 

adopted by reference — in accordance 

with G.S. 150B 14(c) . 

"Recycling" means the process by 

which recovered resources are 

transformed into new products in such 

a manner that the original products lose 

their identity. 

"Refuse" means all non-putrescible 

waste. 

"Respondent" means the person against 

whom an administrative penalty has 

been assessed. 

"Resources recovery" means the 

process of obtaining material or energy 

resources from discarded solid waste 

which no longer has any useful life in 

its present form and preparing such 

solid waste for recycling. 

"Runoff" means the portion of 

precipitation that drains from an area as 

surface flow. 

"Sanitary landfill" means a facility for 

disposal of solid waste on land in a 

sanitary manner in accordance with 

Article 9 of Chapter 130A and this 

Subchapter. 

"Sediment" means solid particulate 

matter both mineral and organic, that 

has been or is being transported by 

water, air, gravity, or ice from its site 

of origin. 

"Sharps" means and includes needles, 

syringes, and scalpel blades. 

"Siltation" means sediment resulting 

from accelerated erosion which is 

settleable or removable by properly 

designed, constructed, and maintained 

control measures and which has been 

transported from its point of origin 

within the site land-disturbing activity 

and which has been deposited, or is in 

suspension in water. 

"Sludge" means any solid, semisolid or 

liquid waste generated from a 

municipal, commercial, institutional, or 

industrial wastewater treatment plant, 

water supply treatment plant, or air 

pollution control facility or any other 

such waste having similar 

characteristics and effect. 

"Solid waste" means any hazardous or 



1184 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



nonhazardous garbage, refuse, or 
sludge from a waste treatment plant, 
water supply treatment plant, or air 
pollution control facility, domestic 
sewage and sludges generated by the 
treatment thereof in sanitary sewage 
collection, treatment and disposal 
systems, and other material that is 
either discarded or is being 
accumulated, stored or treated prior to 
being discarded, or has served its 
original intended use and is generally 
discarded, including solid, liquid, 
semisolid or contained gaseous material 
resulting from industrial, institutional, 
commercial and agricultural operations, 
and from community activities. The 
term does not include: 

(a) Fowl and animal fecal waste; or 

(b) Solid or dissolved material in: 

(i) domestic sewage and sludges 
generated by the treatment thereof in 
sanitary sewage collection, treatment 
and disposal systems which are 
designed to discharge effluents to 
the surface waters; 
(ii) irrigation return flows; and 
(iii) wastewater discharges and the 
sludges incidental thereto and 
generated by the treatment thereof 
which are point sources subject to 
permits granted under Section 402 
of the Federal Water Pollution 
Control Act, as amended (P.L. 
92-500), and permits granted under 
G.S. 143-215.1 by the 
Environmental Management 
Commission; except that any sludges 
that meet the criteria for hazardous 
waste under the Federal Resource 
Conservation and Recovery Act 
(P.L. 94-580) as amended, shall 
also be a solid waste for the 
purposes of this Article; or 

(c) Oils and other liquid hydrocarbons 
controlled under Article 21 A of 
Chapter 143 of the North Carolina 
General Statutes; except that any such 
oils or other liquid hydrocarbons that 
meet the criteria for hazardous waste 
under the Federal Resource 
Conservation and Recovery Act (P.L. 
94-580) as amended, shall also be a 



solid waste for the purposes of this 
Article; or 

(d) Any radioactive material as defined 
by the North Carolina Radiation 
Protection Act, G.S. 104E-1 through 
104E-23; or 

(e) Mining refuse covered by the North 
Carolina Mining Act, G.S. 74-46 
through 74-68 and regulated by the 
North Carolina Mining Commission 
(as defined under G.S. 143B-290); 
except that any specific mining waste 
that meets the criteria for hazardous 
waste under the Federal Resource 
Conservation and Recovery Act (P.L. 
94-580) as amended, shall also be a 
solid waste for the purposes of this 
Article. 

(37) "Solid waste collector" means any 
person who collects or transports solid 
waste by whatever means, including but 
not limited to, highway, rail, and 
navigable waterway. 

(38) "Solid waste disposal site", or "site" 
means any place at which solid wastes 
are disposed of by incineration, sanitary 
landfill, demolition landfill or any other 
acceptable method. 

(39) "Solid waste generation" means the act 
or process of producing solid waste. 

(40) "Solid waste generator" means any 
person who produces solid waste. 

(41) "Solid waste management" means 
purposeful, systematic control of the 
generation, storage, collection, 
transport, separation, treatment, 
processing, recycling, recovery and 
disposal of solid waste. 

(42) "Solid waste management facility" 
means land, personnel, and equipment 
used in the management of solid waste. 

(43) "Spoiled food" means any food which 
has been removed from sale by the 
United States Department of 
Agriculture, North Carolina 
Department of Agriculture, Food and 
Drug Administration, or any other 
regulatory agency having jurisdiction in 
determining that food is unfit for 
consumption. 

(44) "Steam sterilization" means treatment 
by steam at high temperatures for 
sufficient time to render infectious 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1185 



PROPOSED RULES 



waste non-infectious. 

(45) "Storage" means the containment of 
solid waste, either on a temporary basis 

or for a period of years, in such a (55) 

manner as not to constitute disposal. 

(46) "Transfer facility" means a permanent 
structure with mechanical equipment 

used for the collection or compaction of (56) 

solid waste prior to the transportation 
of solid waste for final disposal. 

(47) "Treatment and processing facility" 
means a facility used in the treatment 
and processing of putrescible solid 
waste for final disposal or for 
utilization by reclaiming or recycling. (57) 

(48) "Treatment" means any method, 
technique, or process, including 
neutralization, designed to change the 
physical, chemical, or biological 

character or composition of any solid (58) 

waste so as to neutralize such waste or 

so as to render such waste 

non-hazardous, safer for transport, 

amenable for recovery, amenable for 

storage, or reduced in volume. Such 

term includes any activity or processing 

designed to change the physical form or 

chemical composition of solid waste so 

as to render it non-hazardous. 

(49) "Unit of local government" means a (59) 
county, city, consolidated city-county, 

sanitary district, or other local political 

subdivision, authority or agency of 

local government. 

"Vector" means a carrier, usually an 

arthropod, that is capable of (60) 

transmitting a pathogen from one 

organism to another. 

"Water supply watershed" means an 

area from which water drains to a point 

or impoundment, and the water is then (61) 

used as a source for a public water 

supply. 

(52) "Water table" means the upper limit of 

the portion of the ground wholly (62) 

saturated with water. 

(53) "Working face" means that portion of 
the land disposal site where solid 

wastes are discharged, spread, and (63) 

compacted prior to the placement of 
cover material. 

(54) "Agricultural Waste" means waste 

materials produced from the raising of (64) 



(50) 



(51) 



plants and animals, including animal 
manures, bedding, plant stalks, hulls, 
and vegetable matter. 
"Backyard Composting" means the 
on-site composting of yard waste from 
residential property by the owner or 
tenant for non-commercial use. 
"Compost" means decomposed, 
humus-like organic matter, free from 
pathogens, offensive odors, toxins or 
materials harmful at the point of end 
use. Compost is suitable for use as a 
soil conditioner with varying nutrient 
values. 

"Composting Pad" means a surface, 
whether soil or manufactured, where 
the process of composting takes place, 
and where raw and finished materials 
are stored. 

"Compost Facility" means a solid waste 
facility which utilizes a controlled 
biological process of degrading 
non-hazardous solid waste. A facility 
may include materials processing and 
hauling equipment; structures to control 
drainage; and structures to collect and 
treat leachate; and storage areas for the 
incoming waste, the final products, and 
residual materials. 

"Composting" means the controlled 
decomposition of organic waste by 
naturally occurring bacteria, yielding a 
stable, humus-like, pathogen-free final 
product resulting in volume reduction 
of 30 - 75 percent. 

"Curing" means the final state of 
composting, after the majority of the 
readily metabolized material has been 
decomposed, in which the compost 
material stabilizes and dries. 
"Pathogens" means organisms that are 
capable of producing infection or 
diseases, often found in waste 
materials. 

"Silviculture Waste" means waste 
materials produced from the care and 
cultivation of forest trees, including 
bark and woodchips. 
"Soil Group I" means soil group I as 
defined in 15A NCAC 13B 
.0807(a)(1)(A) of the Septage 
Management Rules. 
"Windrow" means an eloneated 



1186 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



(65) 



(66) 



(67) 



(68) 



(69) 



(70) 



(71) 



(72) 



(73) 



compost pile (typically eight feet wide 
by ten feet high). 

"Yard Waste" means "Yard Trash" and 
"Land-clearing Debris" as defined in 
G.S. 130A-290, including stumps, 
limbs, leaves, grass, and untreated 
wood. 

"Residues from Agricultural Products 
and Processing" means solids, 
semi-solids or liquid residues from food 
and beverage processing and handling; 
silviculture; agriculture; and 
aquaculture operations that are 
non-toxic, non-hazardous, and contain 
no domestic wastewater. 
"Treatment and Processing Waste" 
means waste that is a residual solid 
from a wastewater treatment or 
pretreatment facility. 
"Industrial Process Waste" means any 
solid, semi-solid, or liquid waste 
generated by a manufacturing or 
processing plant which is a result of the 
manufacturing or processing process. 
This definition does not include 
packaging materials associated with 
such activities. 

"Mulch" means a protective covering of 
various substances, especially organic, 
to which no plant food has been added 
and for which no plant food is claimed. 
Mulch is generally placed around plants 
to prevent erosion, compaction, 
evaporation of moisture, freezing of 
roots, and weed growth. 
"Soil Scientist" means an individual 
who is a Certified Professional Soil 
Scientist or Soil Specialist by American 
Registry of Certified Professional in 
Agronomy, Crops, and Soils 
(ARCPACS) or an individual that 
demonstrates equivalent experience or 
education. 

"Foreign Matter" means metals, glass, 
plastics, rubber, bones, and leather, but 
does not include sand, grit, rocks or 
other similar materials. 
"Land clearing waste" means solid 
waste which js generated solely from 
land clearing activities such as stumps, 
trees, limbs, brush, grass, and other 
naturally occurring vegetative material. 
"Land clearing and inert debris landfill" 



(74) 



1Z5J 



means a facility for the land disposal of 
land clearing waste, concrete, brick, 
concrete block, uncontaminated soil, 
gravel and rock, untreated and 
unpainted wood, and yard trash. 
"Yard trash" means solid waste 
resulting from landscaping and yard 
maintenance such as brush, grass, tree 
limbs, and similar vegetative material. 
"Erosion control measure, structure, or 
device" means physical devices 
constructed, and management practices 
utilized, to control sedimentation and 
soil erosion such as silt fences, 
sediment basins, check dams, channels, 
swales, energy dissipation pads, 
seeding, mulching and other similar 
items. 



Statutory Authority G.S. 130A-294. 

.0103 GENERAL CONDITIONS 

(a) All solid waste shall be stored, collected, 
transported, separated, processed, recycled, 
recovered, and disposed of in a manner 
consistent with the requirements of these Rules. 
The Division of Solid Waste Management is 
responsible for the enforcement of these Rules. 

(b) No radioactive waste material shall be 
collected and transported, stored, treated, 
processed, disposed of or reclaimed, except as 
specifically authorized by a radioactive material 
license issued by the Division of Radiation 
Protection. DEHNR. 

(c) Solid waste shall be disposed of at a solid 
waste disposal site in accordance with the Solid 
Waste Management Act and the Federal Act. 
Hazardous waste, lead acid batteries, liquid 
waste, including used oil. infectious waste, and 
any other wastes that may pose a threat to the 
environment or the public health, as determined 
by the Division, are prohibited from disposal at 
a solid waste disposal site. 

(d) The Division has developed a "Procedure 
and Criteria for Waste Determination" which is 
used to determine whether a waste is: 

(1) hazardous as defined by 15 A NCAC 
13A. and 

(2) suitable for disposal at a solid waste 
management facility. 

Information required for evaluation includes the 
identity of the generator, identity of the waste 
and how it was generated, and laboratory results 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1187 



PROPOSED RULES 



indicating the chemical constituency of the 
waste. Copies of "Procedure and Criteria for 
Waste Determination" may he obtained from and 
inspected at the Division, P.O. Box 27687, 
Raleigh, N.C. 27611-7687. 

(A) Waste which is generated outside the 
population and geographic area 
which the solid waste management 
facility is permitted to serve under 
.0504(1 )(g). 

(B) Waste from a transfer facility other 
than a facility permitted under these 
Rules. 

(C) Waste generated by a new generator 
inside the population and geographic 
area which the Solid Waste 
Management Facility is permitted to 
serve if the components of the waste 
cannot be readily determined 
otherwise. 

(D) Waste generated through a change in 
industrial process by an existing 
generator, provided the components 
of the waste cannot be readily 
determined otherwise. 

(E) A load of waste which a sanitary 
landfill operator suspects may 
contain materials which the facility 
is not permitted to receive. 

(F) Requests by a generator interested in 
transporting waste to an identified 
solid waste management facility for 
treatment and processing, transfer or 
disposal. 

(G) All sludges except sludge from 
water treatment plants. 

(H) Other wastes deemed appropriate by 
the Division for testing before 
transporting to a solid waste 
management facility. 

(e) No person shall dispose or cause the 
disposal of solid waste in or on waters in a 
manner that results in solid waste's entering 
waters or being deposited upon lands of the 
state. 

(f) White Goods shall not be disposed of at a 
solid waste disposal site after 1. January, 1991. 

(g) By July 1, 1991, all solid waste 
management facilities owned and operated by or 
on behalf of a local government, except facilities 
which will receive no waste after July 1, 1992, 
shall install scales and weigh all solid waste 
when it is received at the facility. 



(h) By July 1, 1991, each local government 
operating a permitted solid waste management 
facility shall initiate a solid waste recycling 
program which shall be designed to achieve the 
goal of recycling at least 25 percent of the 
municipal solid waste stream by January 1, 
1993, prior to final disposal or incineration at a 
solid waste disposal facility. 

(i) After January 1, 1998, all active sanitary 
landfills (except demolition land clearing and 
inert debris landfills) shall be equipped with 
liners, leachate collection systems and final 
cover systems. 

Statutory Authority G.S. 130A-294. 

SECTION .0200 - PERMITS FOR SOLID 
WASTE MANAGEMENT FACILITIES 

.0201 PERMIT REQUIRED 

(a) No person shall establish or allow to be 
established on his land, a solid waste 
management facility, or otherwise treat, store, or 
dispose of solid waste unless a permit for the 
facility has been obtained from the Division. 

(b) The permit., except for land clearing and 
inert debris permits, shall have two parts, as 
follows: 

(1) A permit to construct a solid waste 
management facility shall be issued by 
the Division after site and 
construction plans have been approved 
and it has been determined that the 
facility can be operated in accordance 
with the applicable rules set forth in 
this Subchapter and so as to provide 
reasonable protection to the 
environment and the public health. 
An applicant shall not clear or grade 
land or commence construction for a 
solid waste management facility until 
a construction permit has been issued. 

(2) A permit to operate a solid waste 
management facility may not be 
issued unless it has been determined 
that the facility has been constructed 
in accordance with the construction 
permit, that any pre-operative 
conditions of the construction permit 
have been met, and that the 
construction permit has been 
recorded, if applicable, in accordance 
with Rule .0204 of this Section. 



1188 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



(c) Land clearing and inert debris facilities 
may be issued a combined permit to construct 
and operate the facility. 

(d) Land clearing and inert debris facilities 
subject to Rule .0563(1) may construct and 
operate after notification as provided for under 
Rule .0563(2). 

{e} (e)Permits, including those issued prior to 
the effective date of this Rule, shall be reviewed 
every five years. Modifications, where 
necessary, shall be made in accordance with 
Rules in effect at the time of review for those 
areas of a permitted sanitary landfill site which 
have not previously received solid waste. 

{d) ffJ.AU solid waste management facilities 
shall be operated in conformity with these Rules 
and in such a manner as to prevent the creation 
of a nuisance, insanitary conditions, or potential 
public health hazard. 

Statutory Authority G.S. 130A-294. 

.0202 PERMIT APPLICATION 

(a) Application for permits required by Rule 
.0201 of this Subchapter should be forwarded to 
the Solid Waste Branch, Division of Health 
Services, P.O. Box 2091, Raleigh, N.C. 27602 
Department of Environment. Health, and 
Natural Resources, Division of Solid Waste 
Management. Solid Waste Section, Post Office 
Box 27687. Raleigh, North Carolina 27611 . 
Permit applications shall contain the following 
information: 

(1) Site and construction plans; 

(2) An approval letter from the unit of 
local government having zoning 
authority over the area where the 
facility is to be located stating that the 
proposed facility meets all of the 
requirements of the local zoning 
ordinance, or that the site is not 
zoned; 

(3) Detailed plans and specifications for 
solid waste management facilities 
(except demolition landfills) shall be 
prepared by a professional 
engineerr except for land clearing and 
inert debris landfills subject to Rule 
.0563(1). The plans shall bear an 
imprint of the registration seal of the 
engineers and the geological study 
studies shall bear the seal of a 
licensed professional geologist, in 



accordance with N.C. G.S. Chapter 
89E; and 
(4) Any other information pertinent to the 
proposed facility, 
(b) Specific information for a permit 
application is found in Sections .0300, .0400 and 
.0500 of this Subchapter. 

Statutory Authority G.S. 130A-294. 

SECTION .0500 - DISPOSAL SITES 

.0501 APPROVED DISPOSAL 
METHODS 

The disposal of solid waste shall be by the 
following approved methods or any combination 
thereof: 

(1) Sanitary landfill; 

(2) Demolition Land clearing and inert 
debris landfill; 

(3) Incineration; or 

(4) Disposal by other sanitary methods 
which may be developed and 
demonstrated to be capable of fulfilling 
the basic requirements of these Rules 
and which have been approved by the 
Division. 

Statutory Authority G.S. 130A-294. 

.0502 OPEN DUMPS 

A person operating or having operated an open 
dump for disposal of solid waste or a person 
who owns land on which such an open dump is 
or has been operating shall immediately close the 
site in accordance with the following 
requirements: 

(1) Implement effective vector control, 
including baiting for at least two weeks 
after closing, to prevent vector 
migration to adjacent properties; 

(2) If the site is deemed suitable by the 
Division, compact and cover existing 
solid waste in place with two feet one 
foot or more of suitable compacted 
earth; a condition of closing the site by 
compacting and covering the waste in 
place shall be recordation of the waste 
disposal location by the property owner 
with the Register of Deeds in the 
county where the land lies. Copies of 
the recordation procedure may be 
obtained from and inspected at the 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1189 



PROPOSED RULES 



Division of Solid Waste Management; 

(3) If the site is deemed unsuitable by the 
Division, remove and place solid waste 
in an approved disposal site or facility; 

(4) Implement erosion control measures by 
grading and seeding; and 

(5) Prevent unauthorized entry to the site 
by means of gates, chains, berms, 
fences, and other security measures 
approved by the Division and post signs 
indicating closure for a period 
designated by the Division not to 
exceed one year. 

Statutory Authority G.S. 130A-294. 

.0503 SITING AND DESIGN 
REQUIREMENTS FOR 
DISPOSAL SITES 

Disposal sites shall comply with the following 
requirements in order for a permit to be issued: 
(1) A site shall meet the following siting 
requirements: 

(a) A site located in a floodplain shall not 
restrict the flow of the 100-year 
flood, reduce the temporary water 
storage capacity of the floodplain or 
result in washout of solid waste so as 
to pose a hazard to human life, 
wildlife or land or water resources. 

(b) A site shall be located in 
consideration of the following: 

(i) a site shall not cause or contribute to 
the taking of any endangered or 
threatened species of plants, fish or 
wildlife; 

(ii) a site shall not result in the 
destruction or adverse modification 
of the critical habitat of endangered 
or threatened species as identified in 
50 C.F.R. Part 17 which is adopted 
by reference — m — accordance — with 
G.S. 150B 1 4 c hereby incorporated 
by reference including any 
subsequent amendments and 
editions. This information is 
available for inspection at the 
Department of Environment. Health, 
and Natural Resources, Division of 
Solid Waste Management, 401 
Oberlin Road, Raleigh, North 
Carolina 27605 where copies can be 
obtained at no cost ; 



(iii) a site shall not damage or destroy an 
archaeological or historical site; and 

(iv) a site shall not cause an adverse 
impact on a state park, recreation or 
scenic area, or any other lands 
included in the state nature and 
historic preserve. 

(c) A new site disposing of putrescible 
wastes shall not be located within 
10,000 feet of an airport runway used 
by turbojet aircraft or within 5,000 
feet of an airport runway used by 
piston-type aircraft; and 

(d) A site shall have available adequate 
suitable soils for cover either on-site 
or from off-site. 

(2) A site shall meet the following design 
requirements: 

(a) The concentration of explosive gases 
generated by the site shall not exceed: 

(i) twenty-five percent of the limit for 
the gases in site structures 
(excluding gas control or recovery 
system components); and 

(ii) the lower explosive limit for the 
gases at the property boundary; 

(b) A site shall not allow uncontrolled 
public access so as to expose the 
public to potential health and safety 
hazards at the disposal site; 

(c) A site shall meet the following surface 
water requirements: 

(i) A site shall not cause a discharge of 
pollutants into waters of the state 
that is in violation of the 
requirements of the National 
Pollutant Discharge Elimination 
System (NPDES), under Section 402 
of the Clean Water Act, as 
amended; 

(ii) A site shall not cause a discharge of 
dredged material or fill material into 
waters of the state that is in 
violation of the requirements under 
Section 404 of the Clean Water Act, 
as amended; and 

(iii) A site shall not cause non-point 
source pollution of waters of the 
state that violates assigned water 
quality standards; 

(d) A site shall meet the following ground 
water requirements: 

(i) New sanitary landfills and lateral 



1190 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



expansions of existing landfills must 
be designed with liners, leachate 
collection systems, and final cover 
systems as necessary to comply with 
ground water standards as 
established under 15A NCAC 2L. 
15A NCAC 2L is adopted by 
reference in accordance with G.S. 
150B 1 4 (c) hereby incorporated by 
reference including any subsequent 
amendments and editions. This 
material is available for inspection at 
the Department of Environment, 
Health, and Natural Resources, 
Division of Solid Waste 
Management, 401 Qberlin Road, 
Raleigh. North Carolina 27605. 
where copies can be obtained at no 
cost , 
(ii) A site,, except for land clearing and 
inert debris landfills subject to Rule 
,0564(8)(e). shall be designed so 
that the bottom elevation of solid 
waste will be a minimum of four 
feet above the seasonal high water 
table; 

(e) A site shall not engage in open 
burning of solid waste; 

(f) A site, except a demolition land 
clearin g and inert debris landfill, shall 
meet the following buffer 
requirements: 

(i) A 50-foot minimum buffer between 

all property lines and disposal areas; 
(ii) A 500-foot minimum buffer between 

private dwellings and wells and 

disposal areas; and 
(iii) A 50-foot minimum buffer between 

streams and rivers and disposal 

areas; and 

(g) Requirements of the Sedimentation 
Pollution Control Law (15A NCAC 
4) shall be met. 

Statutory Authority G.S. 130A-294. 

.0506 APPLICATION REQUIREMENTS 
FOR DEMOLITION LANDFILLS 
(REPEALED) 

Five set s of plans s hall be required in each 
application. 

fB The following shall be required for 

reviewing a site plan application for a 



proposed demolition landfill: 

{a) A map or aerial photograph accurately 

showing the area within one fourth 
mile of the site and identifying the 
following: 

(0 Entire property owned or leased by 

the person providing the disposal 

j lie, 

{h} — Location of all homes, industrial 
buildings, public or private utilities, 
roads, — wells, — watercourses, — and 
other applicable details regarding the 
general topography; 
(«4) — If site is in — 100 year floodplain, 
provide map showing relationship 
(Federal Insurance Agency map. if 
available); 

<b) An approval letter from the unit of 

teeal — government — having — zoning 
authority over the area where the site 
is to be located stating that the s ite 
meets all of the requirements of the 
local zoning ordinance, or that the site 
is not zoned; 

Location of site on a county roadmap; 
The types of waste for disposal; and 



fe)- 






Any other information pertinent to the 
suitability of the proposed site; 

(3) The following shall be required for 

reviewing — a — construction — p4an 
application for a proposed demolition 
landfill: 

{a> A — plot plan of the proposed site 

s howing — the — property — boundary, 
proposed — landfilling — limits, — access 
controls and features such as roads, 
streams, etc.; 

{&) Provi s ions for controlling ero s ion; 

{e^ Procedures for promoting vegetative 

growth as soon as possible on all 
completed areas ( s eeding and fertilizer 
s pecifications); 

{d) A copy of the deed or other legal 

description of the site that would be 
sufficient — as — a — description — m — aft 
instrument — ef- — conveyance — and 
property owner's name; 
Anticipated type of material to be 
disposed of at the site; 



Name and phone number of individual 
re s ponsibl e — fef — operation — and 
maintenance of the s ite; 
(g) Projected use of land after completion 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1191 



PROPOSED RULES 



of the fill; and 

{h4 Any other information pertinent to the 

proposed operational plan. 

Statutory- Authority G.S. 130A-294. 

.0507 OPERATIONAL REQUIREMENTS 
FOR DEMOLITION LANDFILLS 
(REPEALED) 

Afty — person — whe — maintains — or operates — a 
demolition — landfill — s+te — shaH — maintain — and 
operate — the — s4te — m — conformance — with — the 
following practices, unless otherwise specified in 
the permit: 

fH Operational plans shall be approved and 

followed as specified for the site; 

(34 A site shall only accept those solid 

wastes which it is permitted to receive; 

{£) Solid waste shall be restricted to the 

smallest area feasible and compacted as 
densely as practical into cells; 

(4) Solid — waste — shaH — be — covered — as 

specified by the Division in the permit; 
(§4 Within — s-Bt — months — after — f-mal 



m- 



the 



termination ot disposal operations at 
site or a major part thereof or upon 
revocation of a permit, the area shall be 
covered — with — adequate — se+1 — cover, 
adequately — sloped — te — allow — surface 
water runoff in a controlled manner 
without excessive on site erosion and 
off site siltation. and seeded with native 
grasses or other suitable vegetation. 
The Division may require further action 
to be taken in order to correct any 
condition which — is or may — become 
injurious to the public health; 



If necessary, to prevent erosion, seeded 
slopes shall be covered with straw or 
similar material; 

{7) Temporary seeding shall be utilized as 

necessary to control erosion; 

{&) Adequate erosion control measures shall 

be practiced to prevent silt from leaving 
the site; 

(9-) The site shall be adequately secured, by 

means of gates, chains, bcrms. fences. 
ete^ — te — prevent — unauthorized — entry 
except when a trained operator is on 
duty. — An attendant shall be on duty at 
the site at all times while it is open for 
public use to as s ure compliance with 
operational requirements and to prevent 



entry of hazardous waste and other 

unacceptable waste onto the site; 
{4-0} — Surface water shall be diverted from 

the operational area and not allowed to 

be impounded over wa s te; 
(44-) — Solid waste shall not be disposed of in 



-ef- — seiid — waste 



-B 



water; 

f434 — Open — burning 
prohibited; and 

fi-34 — Equipment shall be provided to control 
accidental fires or arrangements shall 
be made with the local fire protection 
agency — te — immediately — provide 
fire fighting services when needed. 

Statutory Authority G.S. 130A-294. 

.0511 through .0559 RESERVED FOR 
FUTURE CODIFICATION 



.0560 LAND CLEARING AND INERT 
DEBRIS (LCID) LANDFILLS 

Rules .0560 = .0566 of Title 15A Subchapter 
13B of the North Carolina Administrative Code 
(T15A.13B .0560 ; .0566); have been adopted 
covering the siting, design, and permitting of 
land clearing and inert debris landfills, effective 
January 4,. 1993. 

Statutory Authority G.S. 130A-294. 

.0561 DELEGATION OF AUTHORITY 
TO LOCAL GOVERNMENTS 

Local governments wishing to administer Rules 
.0560 through .0566 or portions thereof, shall 
submit a proposed ordinance and implementation 
program to the Division for approval. Proposed 
ordinances and implementation programs shall 
meet or exceed the requirements of the 
administered Rules. 

Statutory Authority G.S. 130A-294. 

.0562 BENEFICIAL FILL 

A permit is not required for beneficial fill 
activity that meets all of the following 
conditions: 

(1) The fill material consists only of inert 
debris strictly limited to concrete, 
brick, concrete block, uncontaminated 
soil, rock, and gravel. 

(2) The fill activity involves no excavation. 

(3) The purpose of the fill activity is to 



1192 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



(4) 



improve land use potential or other 
approved beneficial reuses. 
The fill activity js not exempt from, 
and must comply with. aU other 
applicable Federal. State, and Local 
laws. ordinances. rules. and 
regulations, including but not limited to 
zoning restrictions. flood plain 
restrictions. wetland restrictions, 
mining regulations, sedimentation and 
erosion control regulations. Fill activity 
shall not contravene groundwater 
standards. 



Statutory Authority G.S. 130A-294. 

.0563 APPLICABILITY REQUIREMENTS 
FOR LAND CLEARING AND INERT 
DEBRIS (LCID) LANDFILLS 

Management of land clearin g and inert debris 
should be in accordance with the Division 
hierarchy for managing solid waste. Disposal in 
a landfill is considered to be the least desirable 
method of managing land clearing and inert 
debris. Where landfilling is necessary, the 
requirements of this Rule apply. 

(1) Unless required by local ordinance, an 
individual permit is not required for 
Land Clearing and Inert Debris (LCID) 
landfills that meet aM of the following 
conditions: 

(a) The facility is to be operated for the 
disposal of land clearing waste, inert 
debris, untreated wood, and yard 
trash. 

Co) The total disposal area is under two 
acres in size. 

(c) The facility and practices comply with 
the siting criteria under Rule .0564. 
and operational requirements under 
Rule .0566. 

£d) The till activity is not exempt from. 
and must comply with aM other 
Federal. State, or Local laws, 
ordinances. Rules, regulations, or 
orders, including but not limited to 
zoning restrictions, flood plain 
restrictions, wetland restrictions, 
sedimentation and erosion control 
requirements, and mining regulations. 

(2) Where an individual permit is not 
required, the following applies: 

(a) The owner of the land where the 



landfill is located must notify the 
Division on a prescribed form, duly 
signed, notarized, and recorded as per 
Rule .0563(2)(b). The operator of the 
landfill, if different from the land 
owner, shall also sign the notification 
form. A copy of a plat map of the site 
which includes delineating and 
identifying the area to be used for 
landfilling. prepared in accordance 
with G.S. 47-30. and recorded as per 
.0563(2)(b). shall also be submitted to 
the Division. 

(b) The owner must file the prescribed 
notification form and plat for 
recordation in the Register of Deeds' 
Office. The Register of Deeds shall 
record the plat in the map book under 
the name of the land owner in the 
county or counties in which the land 
is located. The Register of Deeds 
shall index the notification and the 
recorded plat map in the grantor 
index under the name of the owner of 
the land in the county or counties in 
which the land is located. A copy of 
the recorded notification and plat, 
affixed with the Register's seal and 
the date, book and page number of 
recording shall be sent to the Division 
of Solid Waste Management. 

(c) When the land on which the Land 
Clearing and Inert Debris Landfill is 
sold, leased, conveyed, or transferred 
in any manner, the deed or other 
instrument of transfer shall contain in 
the description section in no smaller 
type than that used in the body of the 
deed or instrument a statement that 
the property has been used as a Land 
Clearing and Inert Debris Landfill and 
a reference by book and page to the 
recordation of the notification. 

(3) An individual permit is required for the 

construction and operation of a Land 

Clearing and Inert Debris (LCID) 

landfill when: 

(a) The facility is to be operated for the 

disposal of land clearing waste, inert 

debris, untreated wood, yard trash. 

and similar waste types as approved 

by the Division. 

fb) The total disposal area is greater than 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1193 



PROPOSED RULES 



two acres in size. 



(4) Individual permits for land clearing and 
inert debris landfills shall be issued for 
not more than five years. 

(5) Landfills that are currently permitted as 
demolition landfills are required to 
comply with the following: 

(a) Only waste types as described m 
.0563(3 )(a) may be accepted for 
disposal, as of the effective date of 
this Rule. 

(b) Operations must be in compliance 
with .0566 as of the effective date of 
this Rule. 

(c) Existing demolition landfills must 
comply with the siting criteria 
requirements of these Rules as of 
January J, 1998. 

Statutory Authority G.S. 130A-294. 

.0564 SITING CRITERIA FOR LAND 

CLEARING AND INERT DEBRIS 
(LCID) LANDFILLS 

The followin g siting criteria shall apply for 
Land Clearing and Inert Debris (LCID) landfills: 



archaeological or 



LU 



I2i 



[31 



Facilities or practices, if located in a 
floodplain, shall not restrict the flow of 
the 1 00-year flood, reduce the 
temporary water storage capacity of the 
floodplain, or result in washout of solid 
waste, so as to pose a hazard to human 
life, wildlife, or land or water 
resources. 

Facilities or practices shall not cause or 
contribute to the taking of any - 
endangered or threatened species of 
plants, fish, or wildlife. 



Facilities or practices shall not result in 
the destruction or adverse modification 
of the critical habitat of endangered or 
threatened 



CFR 



species as identified j_n 50 
Part 17 which is hereby 



incorporated by reference including any 
subsequent amendments and editions. 
This material is available for inspection 
at the Department of Environment. 
Health. and Natural Resources, 
Division of Solid Waste Management. 
401 Oberlin Road. Raleigh, North 
Carolina 27605 where copies can be 
obtained at no cost. 
(4) Facilities or practices shall not damage 



(5] 



16] 

m 

£8) 

[a] 



Cel 



i£l 



id] 



(si 

£9} 

la] 

(b] 



or destroy an 
historical site. 

Facilities or practices shall not cause an 
adverse impact on a state park, 
recreation or scenic area, or any other 
lands included in the state nature and 
historic preserve- 
Facilities shall not be located in any 
wetland as defined in the Clean Water 
Act, Section 404(b). 
it must be shown that adequate suitable 
soils are available for cover, either 
from on or off site. 

Land Clearing and Inert Debris landfills 
shall meet the following surface and 
ground water requirements: 
Facilities or practices shall not cause 
a discharge of pollutants into waters 
of the state that is in violation of the 
requirements of the National Pollutant 
Discharge Elimination System 
(NPDES). under Section 402 of the 
Clean Water Act, as amended. 
Facilities or practices shall not cause 
a discharge of dredged materials or 
fill material into waters of the state 
that is in violation of the requirements 
under section 404 of the Clean Water 
Act, as amended. 



Facilities or practices shall not cause 
non-point source pollution of waters 
of the state that violates assigned 
water quality standards. 
Waste i_n landfills with a disposal area 
greater than two acres shall be placed 
a minimum of four feet above the 
seasonal high water table, except 
where an alternative separation is 
approved by the Division. 
Waste in landfills with a disposal area 
less than two acres shall be placed 
above the seasonal high water table. 
The facility shall meet the followin g 
minimum buffer requirements: 
50 feet from the waste boundary to all 
surface waters of the state as defined 
in G.S. 143-212. 

100 feet from the disposal area to 
property lines, residential dwellings, 
commercial or public buildings, and 
wells. 

Buffer requirements may be adjusted 
as necessary to insure adequate 



11 94 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



protection of public health and the 
environment. 
(10) The facility shall meet all requirements 
of any applicable zoning ordinance. 



Statutory Authority G.S. 130A-294. 

.0565 APPLICATION REQUIREMENTS 
FOR LAND CLEARING AND 
INERT DEBRIS (LCID) 
LANDFILLS 

Five sets of plans, maps, and reports shall be 
required with each application. The seal of a 
professional engineer is required when 
submitting plans for a Land Clearing and Inert 
Debris (LCID) landfill. 

(1) The following information is required 
in order to review and approve the 
siting of a Land Clearing and Inert 
Debris (LCID) landfill: 

(a) An approval letter from the unit of 
local government having zoning 
authority over the area where the 
facility is to be located stating that the 
site meets all of the requirements of 
the local zoning ordinance, or that the 
site is not zoned. 

(b) Location on a county road map. 

(c) Information showing that the bottom 
elevation of the waste shall be four 
feet above the seasonal high water 
table. Seasonal high water table 
elevations shall be obtained from on 
site test borings, test pits, or from 
other geological or water table 
investigations, studies, or reports 
from the immediate area of the 
proposed facility. 

(d) A written report indicating that the 
facility shall comply with all the 
requirements set forth under Rule 
.0564. 

(e) A copy of the deed or other legal 
description of the site that would be 
sufficient as a description in an 
instrument of conveyance, showing 
property owner's name. 

(f) Any other information pertinent to the 
suitability of the proposed facility. 

(2) The following shall be provided on a 
map or aerial photograph with a scale 
of at least one inch equals four hundred 






(e) 

if) 
£3) 



lal 



(bj 



£dj 

te] 
® 



isl 



feet showing the area within one-fourth 
mile of the site: 
Entire property or portion thereof 
or leased by the 



person 



owned 

providing the disposal site. 

Location of aU homes, buildings. 

public or private utilities, roads. 

wells, watercourses, water or other 

impoundments, and any other 

applicable features or details. 

100-year flood plain boundaries, if 

any. 

Wetland boundaries, if any. 

Historical or archaeological sites, if 

any. 

Park, scenic, or recreation area 

boundaries, if any. 
Development and design plans and 
details, at a scale of at least one inch 
equals one hundred feet with one inch 
equals forty feet preferred, and 
specifications containing the following 
information shall be submitted with the 
a 



application for 
Clearing and Inert 
landfill: 

site 
with 



proposed Land 
Debris (LCID) 



Property or 
dimensioned 



Miy 
and 
distances, tied to North Carolina grid 



boundary, 
bearings 



OJ 



coordinates where reasonably feasible. 

Easements and right-of-ways. 

Existing pertinent on site and adjacent 

structures such as houses, buildings. 

wells, roads and bridges, water and 

sewer utilities, septic fields, and 

storm drainage features. 

Proposed and existing roads, points of 

ingress and egress along with access 

control such as gates, fences, or 

berms. 

Buffer and set back lines along with 

the buffered boundary or feature. 

Springs, streams, creeks, rivers, 

ponds, and other waters and 

impoundments. 

Wetlands, if any. 

Boundary of the proposed waste area. 

Existing topography with contours at 

a minimum of five foot intervals. 

Where necessary, a smaller interval 

shall be utilized to clarify existing 

topographic conditions. 

Proposed excavation, grading, and 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1195 



PROPOSED RULES 



final contours at a minimum of five 
foot intervals. Where necessary, a 
smaller interval shall be utilized to 
clarify proposed grading. Excavation, 
grading, and fill material side slopes 
shall not exceed three to one (3:1 ). 
(k) Where on site borrow for operational 
and final cover is proposed, indicate 
the borrow excavation and grading 
plan with contours at a minimum of 
five foot intervals. Where necessary, 
a smaller interval shall be utilized to 
clarify proposed grading. 
ill Proposed surface water control 
features and devices such as slope 
drains, storm water pipes, inlets, 
culverts, and channels, 
(m) Information showing that the project 
meets the requirements of 15A NCAC 
4^ Sedimentation Control Rules. 
(n) Location of test borings or test pits, if 
used to determine the seasonal high 
water table elevation, shall be shown 
on the plans, 
(o) A minimum of two cross-sections, 
one each along each major axis, per 
operational area showing: 
|jj Original elevations, 
(ii) Proposed excavation. 
(iii) Proposed final elevations. 
(4) An operational plan addressing the 
requirements under Rule .0566 and 
containing the following information 
shall be submitted with the application 
for a proposed Land Clearing and Inert 
Debris (LCID) landfill: 

(a) Name, address, and phone number of 
individual responsible for operation 
and maintenance of the facility. 

(b) Projected use of the land after 
completion. 

(c) Description of systematic usage of 
disposal area, operation, orderly 
development and closure of the 
landfill. 

(d) Type, source, and quantity of waste 
to be accepted. 

(e) An emergency contingency plan, 
including fire fighting procedures. 

Statutory Authority G.S. 130A-294. 

.0566 OPERATIONAL REQUIREMENTS 



FOR LAND CLEARING AND 
INERT DEBRIS (LCED) 
LANDFILLS 

Land Clearing and Inert Debris (LCID) 
landfills shall meet the following operational 
requirements: 

(1 ) Operational plans shall be approved and 
followed as specified for the facility. 

(2) The facility shall only accept those 
solid wastes which ]t ]s permitted to 
receive. 



ID 



(4) 



I5i 



{6} 



m 



m 



(9) 
(10) 



Solid waste shall be restricted to the 
smallest area feasible and compacted as 
densely as practical into cells. 
Adequate soil cover shall be applied 
monthly, or when the active area 
reaches one acre in size, whichever 
occurs first. 



120 calendar days after completion of 
any phase of disposal operations, or 
upon revocation of a permit, the 
disposal area shall be covered with a 
minimum of one foot of suitable soil 
cover sloped to allow surface water 
runoff in a controlled manner. The 
Division may require further action ]n 
order to correct any condition which ]s 
or may become injurious to the public 
health, or a nuisance to the community. 
Adequate erosion control measures, 
structures, or devices shall be utilized 
to prevent silt from leaving the site and 
to prevent excessive on site erosion. 
Provisions for a ground cover sufficient 
to restrain erosion must be 
accomplished within 30 workin g days 
or 120 calendar days upon completion 
of any phase of landfill development. 
The facility shall be adequately secured 
by means of gates, chains, berms. 
fences, etc. to prevent unauthorized 
access except when a trained operator is 
on duty. An attendant shall be on duty 
at all times while the landfill ]s open 
for public use to assure compliance 
with operational requirements and to 
prevent acceptance of unauthorized 
wastes. 

Access roads shall be of all-weather 
construction and properly maintained. 
Surface water shall be diverted from 
the working face and shall not be 
impounded over waste. 



1196 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



an 

(12) 
(13) 

(a) 

£b) 
£141 

£15} 



Solid waste shall not be disposed of in 

water. 

Open burning of solid waste is 

prohibited. 

The concentration of explosive gases 

generated by the facility shall not 

exceed: 



Twenty-five percent of the lower 
explosive limit for the gases in facility 
structures. 

The lower explosive limit for the 
gases at the property boundary. 
Leachate shall be properly managed on 
site through the use of current best 
management practices. 
Should the Division deem it necessary, 
ground water or surface water 
monitoring, or both, may be required 
as provided for under Rules .0601 and 
.0602 of this Subchapter. 
A sign shall be posted at the facility 
entrance showing the contact name and 
number in case of an emergency and 
the permit number. The permit number 
requirement is not a pplicable for 
facilities not requiring an individual 
permit. 



Statutory Authority G.S. 130A-294. 



(16) 









iVotice is hereby given in accordance with G.S. 
150B-21 .2 that the Governor's Waste Management 
Board intends to adopt rules cited as 15A NCAC 
14C .0001 -.0009. 

1 he proposed effective date of this action is 
January 4, 1993. 

1 he public hearing will be conducted at 1:00 
p.m. on October 15, 1992 at the Archdale 
Building, Ground Floor Hearing Room, 512 N. 
Salibury Street, Raleigh, NC 27611. 

ixeason for Proposed Action: To convert the 
Governor's Waste Management Board's 
Conununity Assistance Grant (CAG) guidance to 
formal rules of procedure for awarding CAG's. 

Ksomment Procedures: Interested persons may 



contact Dr. Linda W. Little at (919) 733-9020 for 
more information regarding these rules. Written 
comments will be received for 30 days after 
publication of this notice. The request must be 
submitted to: Linda Little, GWMB, P.O. Box 
27687, Raleigh, NC 27611-7687. Mailed written 
comments must be received no later than 5:00 p.m. 
on October 15, 1992. 



CHAPTER 14 - GOVERNOR'S WASTE 
MANAGEMENT BOARD 

SUBCHAPTER 14C - RULES OF 

PROCEDURE FOR AWARDING 

COMMUNITY ASSISTANCE GRANTS 

.0001 SCOPE 

This Section sets forth the rules of practice for 
the award of community assistance grants by the 
Governor's Waste Management Board. 



143B- 



Statutory Authority G.S. 143B-285. 13(5); 
285. 13(14); 143B-285. 13(15). 

.0002 DEFINITIONS 

As used in these Rules: 

(1) "Board" shall mean the Governor's 
Waste Management Board. 

(2) "Facility" shall mean a low-level 
radioactive waste facility as defined in 
G.S. 104E-5(9b) or a hazardous waste 
facility as permitted under G.S. 
130A-290(a)(9) . 

Statutory Authority G.S. 143B-285. 13(5); 143B- 
285.13(14); 143B-285. 13(15). 

.0003 WHO MAY APPLY 

Requests for community assistance grants may be 
made to ffie Board by North Carolina local 
governments, 
agencies, or 
pursuant to Chapter 55 A of the North Carolina 
General Statutes. Individuals are not eligible for 
grants. 



other public institutions and 
private corporations established 



Statutory Authority G.S. 143B-285. 13(5); 143B- 
285.13(14); 143B-285. 13(15). 

.0004 PROJECTS ELIGIBLE FOR 
GRANT FUNDS 

(a) To be eligible for grant funds, projects must 
be consistent with the Board's functions of: 

(1 ) Promoting public education and public 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1197 



PROPOSED RULES 



involvement in the decision-making 
process for the siting and permitting of 
proposed waste management facilities; 
and 
(2) Assisting localities in which facilities 
are proposed in collecting and receiving 
information relating to the suitability of 
the proposed site. 

(b) Priority will be given to projects which 
promote information exchange among a developer, 
the state, and local citizens concerning a proposed 
waste management facility or to study the local 
impacts related to proposed waste management 
facilities. 

(c) Subject to availability of funds, grants may 
be awarded for projects which provide information 
on waste management issues to the citizens of 
North Carolina to encourage participation in waste 
management decision-making in non-sited 
communities. 

(d) Project funds shall not be used for litigation 
expenses. 

Statutory Authority G.S. 143B-285. 13(5): 143B- 
285. 13(14); 143B-285. 13(15). 

.0005 CONDITIONS FOR GRANTS 

(a) Local governments seeking grants in 
communities where facilities are sited or are 
proposed to be sited shall establish a Citizen 
Involvement Committee on Waste Management to 
provide a vehicle for public involvement in 
advising local government on how the money 
should be spent and in concurrent program 
development. The local government shall make its 
best efforts to assure that the committee appointed 
is balanced, representing all identified interests in 
the community fairly. In evaluating a proposal for 
a grant, the Board will review the composition of 
the Citizen Involvement Committee on Waste 
Management to ensure appropriate efforts have 
been made to achieve balanced representation. 

(b) A 20 percent cash or in-kind contribution 
must be made by the grantee. 

(c) The Board will not reimburse expenses 
incurred on a project prior to the date of the 
Board's approval of a contract. Upon signing a 
contract with the Board, the grantee will be 
reimbursed quarterly for expenses after submission 
of invoices and receipts for expenditures. 

(d) At minimum, an interim report on the 
funded activities must be provided to the Board 
with the final expenditure reimbursement request 
or at the end of the contract, whichever comes 
first. The Board may require additional reports on 



funded activities. The contract shall set forth the 
dates on which all such reports are due. A final 
report must be submitted within 60 days of the 
completed project. Grantees shall comply with 
G.S. 147-58 regarding audits. 

(e) Any consultants employed with any grant 
funds shall be approved by the Board for 
objectivity and proficiency in the selected area for 
which they are consulted. 

(f) All billings must be submitted within six 
weeks after the termination date of the contract or 
by June 10 of the fiscal year jn which the contract 
terminates, whichever is earlier. Billings not 
submitted by June 10 will not be paid. 

Statutory Authority G.S. 143B-285.13(5); 143B- 
285.13(14); 143B-285. 13(15). 

.0006 GRANT PROPOSAL FORMAT AND 
CONTENT 

(a) General Requirements—Grant proposals shall 
be brief and concise, using the form available from 
the Board's office. One original copy, suitable for 
reproduction, shall be submitted to the Board. To 
facilitate uniform review, proposals shall include 
the following: 

( 1 ) A letter of transmittal, identifying the 
responsible party, summarizing the 
project, and signed by the authorized 
local government, corporate, or agency 
official; 

(2) A statement of need stating the specific 
nature of the waste management 
problem being addressed and why 
improvements are needed; 

(3) A description of the proposed project, 
listing the project's goals and objectives 
and describing the proposed project, 
stating the proposed steps or tasks, 
providing a concise statement of the 
expected results and potential benefits 
of the project, and describing the 
mechanism to determine the 
effectiveness and success of the project; 

(4) Sufficient information to demonstrate 
the ability of the applicant to perform 
the project in a timely manner; 

(5) A statement of project costs, including 
a detailed line item budget outlining 
how the money will be spent and 
accounting for the required cash or in- 
kind 20 percent in matching funds. (A 
budget form may be obtained from the 
Board's office.); and 

(6) A timeline or chart describing the 



1198 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



sequence of 
completion. 



tasks and dates for 



(b) Specific requirements for grants to 

communities where facilities are sited or are 

proposed. --Grant proposals in communities where 

facilities are sited or are proposed shall satisfy the 

general requirements set forth in Paragraph (a) of 

this Rule, shall address local issues and concerns, 

and shall demonstrate a need for the proposed 

project. If applicable, the proposal must include 

sufficient information to demonstrate the efforts 

made to achieve balanced representation in 

compliance with Rule .0005(a) of this Section. 

Projects must be specific, citing detailed areas of 

investigation and expected results. Projects shall 

address one or more of the following objectives: 

(1) To independently review the permit or 

license for a proposed waste 

management facility or studies relating 

to the various elements considered ]n 

the permit or license application; 

To study the potential local or regional 

environmental or socioeconomic 

impacts associated with a proposed 

waste management facility; 

To study and clarify the complex legal 

issues involving regulation and 

operation of a proposed waste 



ill 



Q) 



14] 
15] 



management facility; 
To determine the 



local costs and 



benefits of a proposed facility; 
To promote public education, 
information, and participation |n the 
permitting or licensing process; and 
(6) To develop negotiation strategies among 
facility developers, state agencies, and 
the public, 
(c) Requirements for grants to communities for 
waste management education : Grant proposals for 
communities for general education about hazardous 
or low-level radioactive waste management shall 
address local issues and concerns and demonstrate 
a need for the proposed project. 

Statutory Authority G.S. 143B-285.13(5); 143B- 
285. 13(14); 143B-285. 13(15). 

.0007 RECEIPT AND REVIEW OF 
PROPOSALS 

(a) Grant proposals from communities in which 
a waste management facility js sited or is proposed 
to be sited may be submitted at any time. 

(b) Proposals from communities for general 
education grants about hazardous or low-level 
radioactive waste must be received by November 



1 of each year. Proposals shall be reviewed by the 
Board and subsequently denied, approved, or 
approved with conditions. Prior to approval of 
any grant request, the Board will seek review by 
other state agencies which it deems appropriate. 

Statutory Authority G.S. 143B-285. 13(5); 143B- 
285.13(14); 143B-285. 13(15). 

.0008 CRITERIA FOR FUNDING 

Grant proposals shall be evaluated using the 
following criteria: 

(1) Consistency of project's stated goals and 
objectives with the intent of the Board's 
community assistance grants program; 

(2) Project's appropriateness in relation to 
the Board's mandated responsibilities; 

(3) Project's applicability to other group s or 
areas of the state; 

(4) Project's mechanism to determine the 
effectiveness and success of the project; 

(5) Project's timeline; 

(6) Project's ability to make a unique 
contribution on an issue; 

(7) Appropriateness of the funding request in 
relation to the project; and 

(8) Ability of the applicant to perform the 
project in a satisfactory manner. 

Statutory Authority G.S. 143B-285. 13(5); 143B- 
285.13(14); 143B-285. 13(15). 

.0009 TERMINATION OR 
REVOCATION 

Failure to abide by the rules or terms of the 
contract may result in termination of the contract 
and any further obligations of the Board . 

Statutory Authority G.S. 143B-285.13(5); 143B- 

2 85.13(14); 1 4 3 B - 2 8 5 . 1 3 ( 1 5 ) . 

/Votice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR-Commission for Health 
Services intends to amend rule cited as 15 A NCAC 
16A .0401. repeal rules cited as 15A NCAC 16A 
.0402 - .0412 and adopted rules cited as 15A 
NCAC 16A .0413 - .0427. 

1 he proposed effective date of this action is 
January 4, 1993. 



7:12 NORTH CAROLINA REGISTER September IS, 1992 



1199 



PROPOSED RULES 



1 he public hearing will be conducted at the 

time , dates , and locations shown below: 

1 he public hearings will be conducted at the 
following dates, times and locations: 

October 13, 1992 

7:30 p.m. 

Room 204 Buncombe County Courthouse 

60 Court Plaza 

Asheville, NC 

(Main entrance locked at night; use 

ground floor side entrance on College Street) 

October 19, 1992 

1:30 p.m. 

Ground Floor Hearing Room 

Archdale Building 

512 N. Salisbury Street 

Raleigh, NC 

MXeason for Proposed Action: To amend and 
adopt cancer control program rules for 
implementation of the Comprehensive Breast and 
Cervical Cancer Control Project, a multi-year 
cancer screening, follow-up and surveillance 
initiative funded under a cooperative agreement 
with the Centers for Disease Control. 

(comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P. O. Box 629, 
Raleigh. NC 27602-0629, (919) 733-4618. If you 
desire to speak at the public hearing, notify John 
P. Barkley at least 3 days prior to the public 
hearing. Oral presentation lengths may be limited 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL 
INTERESTED AND POTENTIALLY AFFECTED 
PERSONS, GROUPS, BUSINESSES, 
ASSOCIATIONS, INSTITUTIONS. OR AGENCIES 



MAKE THEIR VIEWS AND OPINIONS KNOWN 
TO THE COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL 
PROVISIONS OF THE PROPOSED R ULES. THE 
COMMISSION MAY MAKE CHANGES TO THE 
R ULES A T THE COMMISSION MEETING IF THE 
CHANGES COMPLY WITH G.S. 150B-21.2(f). 

tLditor's Note: These rules have been filed as 
temporary rules to be effective on September 18, 
1992 for a period of 180 days or until the 
permanent rule is effective, whichever is sooner. 



CHAPTER 16 - ADULT HEALTH 

SUBCHAPTER 16A - CHRONIC DISEASE 

SECTION .0400 - CANCER PROGRAM 

.0401 DEFINITIONS FOR BREAST AND 
CERVICAL CANCER SERVICES 

(a) The Comprehensive Breast and Cervical 
Cancer Control Program provides: 

( 1 ) breast cancer screening and follow-up 
services; or 

(2) cervical cancer screening and follow-up 
services; 

(b){a) The cancer program provides financial 
assistance for the medical care of indigent patients 
requiring inpatient or outpatient: 

( 1 ) diagnostic services for cancer; or 

(2) treatment services for cancer. 

(c) The following definitions shall apply 
throughout this Section: 

(1) "breast cancer screening services" 
means a clinical breast examination; a 
mammogram in accordance with the 
American Cancer Society Guidelines 
for the Cancer-related Check-up: 
Recommendations; instruction in breast 
self-examination; and documentation of 
screening test results in the patient's 
medical record and notification to the 
patient of the screening test results. 
The American Society Guidelines for 
the Cancer-related Check-up: 
Recommendations i_s hereby 
incorporated by reference including any 
subsequent amendments and editions. 
This material is available for inspection 
at the Department of Environment, 



1200 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



Health. and Natural Resources, 



Division of Adult Health, 1330 St 
Mary's Street, Raleigh, North Carolina. 
Copies may be obtained from the 
Division of Adult Health, Department 
of Environment, Health, and Natural 
Resources, PO Box 27687, Raleigh, 
North Carolina 2761 1-7687 at a cost 
set by that office, 

(2) "cervical cancer screening services" 
means a pelvic examination; a Pap test 
in accordance with the American 
Society Guidelines for the cancer- 
related check-up: Recommendations 
and documentation of the screening test 
results in the patient's medical record 
and notification to the patient of the 
screening test results. 

(3) "follow-up for breast cancer screening 
services" means a repeat mammogram 
and, when medically appropriate, a 
diagnostic mammogram. 

(4) "follow-up for cervical cancer screening 
services" means a repeat Pap smear 
and, when medically appropriate, 
colposcopy directed biopsy. 

(d)-fh) The cancer program and The 

Comprehensive Breast and Cervical Cancer 
Control Program are ts administered by the H e alth 
Care — S e ction, Division of Adult Health, 
Department of Environment, Health, and Natural 
Resources, P.O. Box 27687. Raleigh. NC 
27611-7687. 

Statutory Authority- G.S. 130A-205; Sec. 301 & 
317, Public Health Services Act, as amended. 

.0402 DIAGNOSTIC SERVICES 

{a) — Financial a ss i s tanc e s hall b e provid e d for 
primary diagnostic s e rvic e s, up to two visits on an 
outpati e nt basis or up to on e day on an inpati e nt 
basis — per- — yeaf — for- — eaeh — pati e nt. — s ubj e ct — te 
d e termination of pati e nt eligibility and availability 
of funds. Th e actual numb e r of outpatient visit s or 
inpati e nt days authoriz e d for r e imburs e m e nt shall 
be determin e d by th e phy s ician consultant to th e 
program, bas e d on th e m e dical condition of th e 
pati e nt, th e proc e dur e to b e p e rform e d, and a 
r e asonabl e r e cov e ry from th e proc e dur e . 

f4-) Applications — for- — inpatient — diagnostic 

servic e s will be consid e r e d only when 
accompani e d — by — a — writt e n — s tat e m e nt 
from th e att e nding physician listing: 
(A) — the medical r e a s on inpati e nt se rvic es 
ar e r e quir e d, and 



f&) — the — m e dical — r e a s on — such — s e rvic e s 
cannot be p e rform e d on an outpati e nt 
basis. 

(3) The stat e m e nt in (a)(1) of this Rule may 

be in th e form of workup protocol, 
clinical not es , m e dical hi s tory, or oth e r 



m e dical — docum e nt — m- 



-ef- 



<^ 



s e parately pr e par e d s tat e m e nt; how e v e r. 
a«y — s«eh — documentation — must — give 
ad e quat e — information — te — ju s tify — aft 
inpatient admission, and must bear th e 
nam e of th e attending phy s ician. 
The stat e ment in (a)(1) of this Rul e 



s hall — be — r e view e d — by — the — physician 
consultant to th e cancer program who 
sftaH — ass e ss — the — m e dical — seed — for- 
inpati e nt diagnostic services. 

{A) If th e phy s ician con s ultant to th e canc e r 

program do es not r e comm e nd inpatient 
s e rvic e s — fof — a — pati e nt. — the — canc e r 



; hall only authoriz e 



ic e s 
program 

r e imburs e m e nt for outpati e nt diagnostic 
s e rvices. — and — ©fthy — te — the — ext e nt 

recomm e nd e d by the physician 

consultant. 
fh) — Bill s for authorized diagnostic s e rvic e s will 
b e paid, but th e canc e r program s hall not pay for 
any s e rvic es r e nd e r e d that ar e not authoriz e d. 

fe) — Th e following diagnostic proc e dur e s and 
accompanying biopsy, wh e n appropriat e , will b e 
cover e d by th e canc e r program on an outpatient 



basis 



-ffl — ft- 



-phyf 



rffr 



e m e rg e no\ 



-©f 



-ef — by — eaeh — phy s ician — r e qu es ting 

Rost e rabl e 



outpati e nt d e partm e nt when e v e r possibl e . — Th ese 
procedur e s shall b e p e rform e d only by a physician 
and r e imbur se m e nt only to tho se phy s ician s li s ted 
on a ro s t e r with th e canc e r control — program. 
R e qu e sts for inclusion on th e rost e r shall b e s e nt to 
th e canc e r control program at th e principal addr ess 
of th e Division and shall includ e an indication of 
th e availability of e quipm e nt n e c e ssary to compl e t e 
th e proc e dur e . — Th e l e tt e r must b e sign e d by th e 
physicii 

ro s t e ring — m — a — group — practic e , 
proc e dur e s includ e : 

fH bronchoscopy. 

(2-) colono s copy, 

{£) colposcopy. 

{4) cryosurg e ry of th e c e rvix. 

(§) cystoscopy, 

{&) esophagogastroscopy, 

f7-) recto s igmoidoscopy. 

fd) — Any diagno s tic proc e dur e that i s m e dically 
indicat e d and not oth e rwi se availabl e at a local 
h e alth — d e partm e nt — is — spon s orabl e — without — a 
rost e ring r e quir e m e nt, e xc e pt for tho se diagno s tic 



7:12 NORTH CAROLINA REGISTER September 75, 1992 



1201 



PROPOSED RULES 



procedur e s specifically s tat e d in (o) of thi s Rul e . 

(c) Sputum cytology, urin e cytology and biopsy 
e xamination must b e don e by a pathologist. 

Statutory Authority G.S. 130A-220. 

.0403 TREATMENT SERVICES 

(a) Financial a ss i s tanc e i s provid e d for treatm e nt 
s e rvic e s, up to 8 days of inpatient s e rvice or up to 
16 outpati e nt — visits p e r year for each — patient, 
subj e ct to d e t e rmination of patient eligibility and 

availability — of funds. Th e actual — numb e r of 

inpatient days or outpati e nt vi s it s authoriz e d for 
reimburs e m e nt — s hall — be — d e t e rmin e d — by — the 
physician consultant to th e program, bas e d on th e 
medical condition of th e pati e nt, th e proc e dur e to 
be p e rform e d, and a rea s onable recov e ry from th e 
proc e dur e . 

fb-) — Bills for authoriz e d tr e atm e nt s e rvic e s will 
b e paid, but th e canc e r program shall not pay for 
any servic e s rend e r e d that ar e not authoriz e d. 



Statutory Authority G.S. 130A-205. 

.0404 COVERED SERVICES 

(a) An eligibl e pati e nt may b e sponsor e d for th e 
tr e atm e nt of cancer by surg e ry, radiation th e rapy, 
chemoth e rapy, or immunoth e rapy. 

fb} — Phy s ical th e rapy following surg e ry, wh e r e 
m e dically — indicat e d, — is — an — approv e d — tr e atment 
se rvic e — en — an — inpati e nt — and — outpati e nt — ba s i s . 
Ho s pitals and physicians ar e e ncourag e d to utiliz e 
hom e h e alth ag e nci e s for thi s se rvic e wh e n e ver 
possibl e . — Advanc e application should b e made by 
local home health agenci e s for sponsorship of this 



agenci e s 
servic e . 
ffr) — S e rvic e R es triction s : 



fH- 



Th e Cc 



i e Lanc e r program will not s pon s or 
palliativ e treatm e nt of any kind. 

{2j The Canc e r program will not pay for 

blood, but may cov e r th e cost of blood 
administration. 

{3} D e ntal s urg e ry i s not s ponsored, but 

nond e ntal oral surg e ry p e rform e d for 
th e diagnosis or tr e atment of canc e r i s 



(4>- 



sponsorabl e . 

Th e Canc e r program shall not spon s or 



late — discharg e — fees^ — transportation, 
t e l e phon e calls, or oth e r misc e llaneous 
charg es whil e th e pati e nt is r e c e iving 
se rvic es . 



<$r- 



m- 



-G- 



M=ed 



o s m e tic — s urg e ry — js — net — s ponsor 
unl ess p e rform e d in conjunction with 
th e r e moval of canc e rous tissue. 
Ancillary — diagno s tic — s tudi es — shall — be 



m- 



authorized only wh e n they are directly 
relat e d — te — the — confirmation — ef- — a 
diagno s is of cancer, as d e termined by 
th e physician consultant to the program : 
The — program — shaH — net — authorize 



r e imburs e ment for routin e follow 



«P 



offic e — visits — aftef — completion — of a 
d e finitive cours e of diagnostic studios 
or treatment. — Howev e r, the program 
may — consider — a — request — fef — the 
definitive diagnosis or treatm e nt of a 
r e curr e nt disease. 

{&) Colpo s copy must b e perform e d on all 

sponsorable — patients — te — det e rmine 

appropriate th e rapy fef c e rvical 

intra e pith e lial n e oplasia. Local cervical 
th e rapy must be us e d when colposcopic 
finding s confirm this as appropriate. 
Diagnostic or therap e utic conization s of 
th e c e rvix will b e approved only after 
colposcopic findings — indicate this is 
absolutely nece ss ary, and only on an 

outpati e nt basis unle ss e xtreme 

circumstanc e s a-Fe documented. 



G 



onization — ef- — the — cervix — w+H — be 
sponsor e d — if- — ene — er — mor e — ef- — the 
following — condition s — ape — met — and 
docum e nt e d: 
(A) — Un s ati s factory colposcopy due to the 
l es ion e xt e nding into the e ndoc e rvical 
canal; 
fB^ — Positiv e e ndocervical curr e tage; or 
{€} — Cytologic or histologic s uspicion for 
invasiv e canc e r. 
Hyst e r e ctomy will not b e sponsor e d as a primary 
th e rapy for c e rvical intra e pith e lial n e oplasia. 

fd) Ch e motherapy — may — be — authoriz e d — fer 

t e sticular carcinoma, Hodgkin' s di se a s e, histiocytic 
lymphoma, choriocarcinoma in wom e n, Wilm's 
Tumor, and br e ast cancer. — Other conditions will 
b e e valuat e d on an individual ba s i s . — All r e qu es t s 
for ch e moth e rapy shall — b e accompani e d — by a 
protocol d e scribing th e treatm e nt being requested. 
fe) — Ov e rnight accommodations in a r e sidential 
eape — facility — (mot e l, — hom e , — boarding — hous e , 
ambulatory — eafe — facility. — eter) — and — m e als — fef 
pati e nts r e ceiving cancer diagnostic or treatment 
se rvic es on an outpati e nt basis shall b e sponsor e d 
by — the — canc e r — program — under — the — following 
condition s : 

fj-) The pati e nt's resid e nc e must b e at l e ast 

3Q — mil es — from — the — m e dical — facility 
providing th e outpati e nt services. 

{2} Th e r e sid e ntial car e facility must b e 

approv e d for participation by th e canc e r 



1202 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



program. 

f3-) T4te — pati e nt — must — m ee t — ati — m e dioal 

eligibility r e quir e m e nts as stat e d in Rul e 
.0 4 06, — and — &H — financial — eligibility 
requir e ments as stat e d in — I5A NCAC 



m- 



f9- 



24At 



Reimburs e m e nt — for- — actual — e xp e ns e s 

sheH net — e xce e d the maximum 

allowabl e — subsist e nc e — (lodging — and 
meal s ) for stat e employ e es in th e cours e 
of their official duti e s, based on thos e 
rat e s of r e imburs e m e nt in e ff e ct at th e 
tim e of th e authorization of r e sid e ntial 
care by the canc e r program. 

(5-) Th e cancer program shall not r e imburs e 

for any incid e ntal exp e n ses incurr e d a s 
a r es ult of th e us e of a resid e ntial car e 
facility, including transportation- 
t e l e phon e , e tc. 

fe} Canc e r program authorization — of 

r es id e ntial car e shall b e limit e d to th e 
maximum number of day s of coverag e 
as — provid e d — by — Rul e s — .0 4 02(a) — &f 
.0 4 03(a) of this Subchapt e r, e xc e pt that 
the — cancer — program — s hall — sponsor 
continuous — (we e k e nd) — cov e rag e — ©f 
r e sidential — eafe — during th e p e riod — m 
which — outpati e nt — se rvic es — afe — b e ing 

r e nd e r e d, provid e d th-at wh e n 

r e sid e ntial — car e b e gins or e nds on a 
Saturday or Sunday, r e imburs e ment for 



tho se — w ee k e nd — day s — s hall — net — be 
sponsor e d. 



Applicatior 



■4m 



Hrtk 



orization 



r e qu e sting — r e sid e ntial — eafe — shall stat e 
the number of days — sueh — r es id e ntial 
car e which will b e r e quir e d, as w e ll as 
the — dat es — ef — se rvic e — during — which 
outpati e nt — diagno s tic — er — tr e atm e nt 
se rvic es s hall b e r e nd e r e d. 



Statutory Authority G.S. 130A-205. 

.0405 FINANCIAL ELIGIBILITY 

Financial eligibility for th e canc e r program shall 
b e d e t e rmin e d in accordanc e with rul e s found in 
10 NCAC 4 C. 

Statutory Authority G.S. 130A-205. 

.0406 MEDICAL ELIGIBILITY 

{&) To b e — m e dically — e ligibl e for diagno s tic 

authorization, — a patient — must — hav e — a condition 
s trongly — suspicious — of cancer — which — r e quir es 
outpatient or — inpati e nt — s e rvices — to confirm — the 



pr e liminary primary diagno s i s . Th e program shall 
authoriz e only tho se se rvic es d e em e d medically 
necessary — te — confirm — a — preliminary — primary 
diagno s i s — as — d e termin e d — by — the — phy s ician 
con s ultant to th e program. 

(b) Cervical intraepithelial neopla s ia, d e fin e d a s 
any condition suggestiv e of preinvasiv e c e rvical 
canc e r (mild dy s plasia, mod e rate dysplasia, se v e r e 
dy s pla s ia, or carcinoma in s itu), i s s u s picious of 
cancer or it s pr e cursors and may b e s ponsor e d by 
th e canc e r program on th e ba s i s of cytologic or 
histologic — evid e nce — ef — c e rvical — intra e pithelial 
n e oplasia. 

f&) — B e for e treatm e nt s e rvic e s can b e authoriz e d 
by th e canc e r program, all ca se s must be prov e n 
cancerous (positiv e pathology report). 

fd-) — B e for e th e canc e r program can authorize 
tr e atm e nt s e rvic e s, th e attending physician mu s t 
c e rtify that th e re i s a r e asonabl e chance th e canc e r 
can be cur e d or arr e sted. 

fe) — All r e qu es t s for tr e atm e nt shall b e reviewed 
by th e physician consultant to th e program. — Such 
r e qu es t s — s hall — be — authoriz e d — e«Jy — after — a 
d e t e rmination — by — the — physician — consultant that 
th e r e is a r e asonabl e chanc e of cur e or arrest of 
th e di se a se and that th e s e rvic e s to b e provid e d ar e 
m e dically n e c ess ary and rea s onabl e . — In making 
thi s d e t e rmination, th e phy s ician con s ultant may 
conf e r — with — the — pati e nt's — att e nding — phy s ician, 
m e mb e r s of th e Canc e r Committ ee of th e North 
Carolina M e dical Soci e ty, and oth e r phy s ician s 
train e d in th e tr e atm e nt of cancer. 



Statutory Authority G.S. 130A-205. 

.0407 PROVIDERS PARTICIPATING IN 
THE CANCER PROGRAM 

(a) To b e e ligibl e for participation in th e canc e r 
program, a ho s pital mu s t hav e faciliti es to tr e at 
canc e r — w+th — surgery, — radiation, — and — radium. 
Ho s pital s with only two treatment mode s but with 
an e stablish e d r e f e rral syst e m for the third mode 

afe — aise — eligibl e . Int e rim — approval — for- 

participation may b e grant e d by th e head of th e 
canc e r — program, — with — frnal — approval — p e nding 
r e vi e w by the canc e r committ ee of th e North 
Carolina M e dical Soci e ty. — S e rvices may al s o b e 
provid e d in a phy s ician' s offic e or other outpati e nt 
facility. 

fb-) A — pati e nt — may — r e c e iv e — se rvic es — ifl — the 

ho s pital — ©f — physician's — offic e — ef — his — choic e 
provid e d that hospital s s e rvic e s ar e r e nd e r e d in a 
ho s pital that has b e en approv e d in accordanc e with 
Paragraph (a) of th i s Rul e . A li s t of such ho s pital s 
may b e obtain e d from th e h e ad of th e canc e r 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1203 



PROPOSED RULES 



program at th e principal addres s of th e Division of 
Adult H e alth. 

fe-) Wh e n — a — r e qu e st — f-ef — authorization — is 

approv e d, a copy of th e authorization will — be 
r e turn e d to th e provid e r of r e cord (hospital or 
physician who se nam e appears on th e r e qu e st for 



authorization). 



-Ve* 



vid e r — of r e cord — ski 



-pfe 

forward copi e s of th e authorization to all oth e r 
provid e rs of tho s e services list e d in th e r e quest for 
authorization. 

(d) Th e provider of r e cord shall inform all other 
known provid e rs of s e rvic e s list e d in th e r e qu e st 
for authorization of any action tak e n by th e canc e r 
program or th e office of purchas e of care services 
including th e authorization or d e nial of th e r e qu e st, 
issuanc e of ca se and authorization numb e rs, billing 
instruction s , or any oth e r communication from or 
action — tak e n — by — tbe — Divi s ion of Adult — H e alth 
conc e rning canc e r program r e imburs e m e nt. 



fef- 



AH- 



for authorized s ervices rendered 



shall b e proc ess ed in accordanc e with rul e s found 
in 15A NCAC 2'1A. 

(f) Assistant surg e on's f ee s will b e paid on thos e 
authoriz e d oas e s in which th e proc e dur e s cannot b e 



afe — b e ing — r e que s ted; — aed — att e nding 

physician nam e . offic e address, 

t e l e phon e numb e r and signature. 

(3) R e qu e sts for treatm e nt services must 

contain eM pati e nt biographical 

information; wh e r e se rvic e s are to be 
giv e n — aftd — date — ef- — ftfst — servic e ; 
pathological — diagnosis — aftd — stag e — ef 
dis e as e ; — fiv e year — s urvival — fate — ef 
diseas e and d e claration that the disease 
has — a — reasonabl e — chanc e — ef — cur e ; 
se rvic es to b e r e nd e r e d; and att e nding 

physician nam e , office addr e ss, 

t e l e phon e numb e r, and signature. 
fd-) — S e parat e application s for authorization are 
n e c e ssary for diagnosis or tr e atm e nt. 

fe} — In cas e s in which it i s difficult to d e termin e 
whether th e se rvic es to b e r e nd e r e d ar e diagnostic 
or tr e atm e nt, such as th e r e moval of an e ntire 
tumor for biopsy, an application for diagnostic 
s e rvic e s should b e submitt e d fir s t. 

(f) Wh e n tr e atm e nt is b e ing r e qu e st e d, a copy of 
a po s itiv e pathology r e port stating th e cytologic or 



■ s e nc e of canc e r, and dat e d no more 



authoriz e d oas e s in wnien tn e proc e dur e s cannot o e Histologic pr e s e nc e or canc e r, and dat e d no more 

p e rformed without surgical assistanc e . Th e bill for than 30 days prior to initiation of th e r e qu e sted 



th e assistant surg e on's fee should b e submitt e d 
jointly with th e s urg e on' s bill. 

fg} — Claims for payment s hould b e s e nt to th e 
offic e of purchas e of car e s e rvic e s at th e principal 
addr ess of the D e partm e nt. 

Statutory Authority G.S. 130A-205. 

.0408 PATIENT APPLICATION PROCESS 

(a) Application forms approv e d by th e Division 
may b e r e qu es t e d by the provid e r from th e canc e r 
program at th e principal addr e ss of th e Divi s ion. 

fb-) — Th e authorization and financial c e rtification 



fe 



rms are to b e compl e t e d in accordanc e with th e 
rules found in 15A NCAC 2 4 A and th e dir e ction s 
print e d on the forms. 

fe} — Th e authorization r e qu e st form must b e 
r e c e iv e d with all pertinent information compl e t e d. 
AH — requ e st — form s — that — afe — r e c e iv e d — that — afe 
incorr e ct — ef — incomplete — wifl be — returned 



e rvic e s, — must — accompany — thus — requ es t — fef 

authorization. T4hs — program — has the — right to 

r e qu e st — additional — m e dical — docum e nts that arc 
deemed n e c ess ary for a prop e r d e t e rmination of 

m e dical e ligibility prior to authorization. T4hs 

pati e nt s ignature on the financial e ligibility form 
s hall se rv e as a valid pati e nt r e l e as e for s uch 
m e dical — information — te — be — submitt e d — te — the 
program . 

(g) Th e original compl e t e d forms, and copi e s of 
any m e dical docum e nt s , should b e forward e d to 
th e canc e r program. — In accordanc e with th e rul es 
found in 15A NCAC 2 4 A, th e canc e r program will 
inform — the — provid e r — ef- — r e cord — wh e th e r — the 



authoriz e d. 



Provid e rs — afe 



application — 

e ncouraged to retain copies of all mat e rial s se nt to 

the — canc e r — program — pending — authorization — ef 

d e nial. 



fb> 
733 70 8 



For 



inauthoriz e d — te — tbe- 



vid e r — e 



f- — r e cord — fef 



-Bfe 

corr e ction — ef — compl e tion. A+l — r e qu e sts — f-ef 

authorization mu s t contain the following 

information: 

f+-t R e qu es ts for diagno s i s mu s t contain all 

patient biographical information; wh e r e 
services are to be giv e n and dat e of 
ftfst — service; — pr e liminary' — primary 



e m e rg e ncy authorization, — eaH — (919) 
Em e rg e ncy — admissions — afe — rar e ly 
approv e d and only for e xtr e m e cau ses . — Int e rim 
approval — ean — be — grant e d — ov e r — the — t e l e phon e 

gibility 



pfe 



vid e d tbc 



pati e nt meets 



^44- 



e lig 



r e quir e m e nts. — How e v e r, th e writt e n application 
must b e r e vi e w e d b e for e final authorization can b e 
grant e d. — Information r e qu i r e d during a t e l e phon e 



u es t for e m e rg e ncy authorization wi 



diag 



iii" . i'.. 



se rvic es — te — be — r e nd e r e d; 



m e dical justification if i npati e nt se rvic es 



feq 

at l e ast, th e following information: 

f+} pati e nt biographica l information. 

f2-) wh e r e se rvic es ar e to b e provid e d. 



lclud e . 



1204 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



i^j nature of e m e rgency, 

f4) s e rvic e s being request e d, 

f§) nam e and telephon e number of call e r, 

fe) name — and — t e l e phon e — numb e r — e# 

admitting phy s ician. 
All telephon e r e quests for e merg e ncy authorization 
shall b e r e vi e w e d by and r e ceive concurrenc e from 
the physician con s ultant to th e canc e r program 
after a t e l e phone confer e nce with th e admitting 



phys 



-+f- — a — requ e st — fef — an — emergency 



authorization i s not approv e d, the canc e r program 



will consid e r authorization on a routin e bas 



4# 



the — information — that — is — communicat e d — m — the 
telephon e r e qu es t is not substantiated in th e writt e n 
authorization r e quest, th e e m e rg e ncy authorization 
shall imm e diat e ly be canc e ll e d. 

{*) — The canc e r program is not responsible for 
any — ease — which — has — net — been — r e qu e sted — and 
authoriz e d, nor for any approv e d servic e s that ar e 
not sp e cifically reque s t e d and authoriz e d. 

(j) The program will not authoriz e s e rvices that 
are submitted on authorization forms that ar e not 
curr e ntly in us e ; all r e qu es t s s ubmitt e d on outdated 
or invalid form s will b e r e turn e d unauthoriz e d to 
th e provider of record, accompani e d by a supply 
of curr e nt form s for r es ubmi ss ion of th e r e qu e st 
and submission of futur e r e qu e sts. 



Statutory Authority G.S. 130A-205. 



comput e r compatibl e means of data entry. — Only 
personnel authoriz e d by th e head of th e oano o r 
control — program — te — use — computers, — terminals, 
programs, data files, and other computer hardware 
ef — software, — involv e d — m — maintaining — pati e nt 
information s hall hav e acc e ss to th e m. 

fe) — Clinical information in possession of th e 
canc e r control reimbur se m e nt program may be 
disclos e d — m — th e following circumstances — when 
authoriz e d — by the head of th e cancer — control 
program or hi s d e sign e e: 

ft) A patient shall have acc e ss to r e view or 

obtain copies of his records; 
-A — person — whe — submits — a — valid 



m- 



pers 

authorization — for r e l e ase — shaH — hav e 
access to r e vi e w or obtain copie s of the 



informat i on d e scribed 



-the 



authorization for release; 



m- 



Informati - 



-be — disclosed 



Hen — may — ee — disclosed — m 
r e spon se to a valid court ord e r. 

fd) — The canc e r control program may r e leas e 
s tati s tical — information and data bas e d on client 
information so long as no information identifying 
individual pati e nt s i s relea s ed. 

(e) Th e h e ad of th e canc e r control program shall 
mak e known to all — individuals with aoo e ss to 
pati e nt information s ubmitted to th e canc e r control 
program th e privil e g e d and confid e ntial natur e of 
such information. 



.0409 REPORTING OF CANCER 

Ev e ry physician s hall r e port cancers as r e quir e d 
by G.S. 13QA 209, in th e manner pr e scrib e d by 
15A NCAC 26. 

Statutory Authority G.S. 130A-209. 

.0410 CANCER REGISTRY 

Rul es gov e rning th e admini s tration of th e c e ntral 
canc e r r e gi s try' are found in 15A NCAC 26. 

Statutory Authority G.S. 130A-205. 

.0411 CONFIDENTIALITY 

fa) — Th e clinical records of individual patients 
submitted to th e canc e r control — r e imbursement 
program s hall b e confid e ntial and shall not b e 
public r e cords op e n to insp e ction. Only p e r s onn e l 
authoriz e d — by th e — head of the canc e r control 
program and oth e r individual s authoriz e d by th e 
head of th e canc e r control program or hi s d es ign e e 
pursuant to Paragraph (c) of this Rul e shall hav e 
acc e ss to th e records. 

{e) — Th e information contain e d in th e clinical 
r e cords of individual pati e nt s may b e transf e rr e d to 



Statutory Authority G.S. 130A-205. 

.0412 REIMBURSEMENT RATES 

fa) — Th e canc e r control r e imbur se m e nt program 
s hall r e imbur se provid e r s of authoriz e d s ervices to 
e ligibl e patient s a s follow s : 

f-t) Inpati e nt hospitalization se rvic es shall 

b e r e imburs e d at th e m e dicaid rat e in 



m- 



&- 



iv e d 



e ff e ct at th e tim e th e claim is r e c e n 
by the Division. — Wh e n th e medicaid 
p e r di e m rat e chang e s to th e " e xc e ss 
day s " p e r diem rate a s provid e d in th e 
m e dicaid r e imbur se m e nt plan in e ff e ct 
at the tim e th e claim is r e c e iv e d by the 
Division, — the — cancer — program — s hall 
r e imbur se at th e " e xc es s days" rat e . 

Prof ess ional s e rvic e s, outpati e nt 

s e rvices, — and — aH — oth e r — se rvice s — net 
cov e r e d by Subparagraph (a)(1) of this 
Rul e — shftH — be — r e imbur se d — at — the 



=ted+ 



#* 



m e dicaid rat e in eff e ct at the time 
claim i s received by th e Divi s ion. 
S e rvic es — fef — which — the — m e dicaid 



program do e s not hav e a reimbursement 
rate shall b e r e imburs e d according to a 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1205 



PROPOSED RULES 



schedule of paym e nt s d e v e lop e d by th e 

Division. — Copi es of thi s s ch e dul e may 

be inspect e d at or obtain e d from th e 

Offic e of M e dical Car e S e rvices. 

fb) — If a provid e r has acc e pt e d partial or total 

paym e nt from th e canc e r program for particular 

s e rvices, the Division's r e imbur se m e nt rat e for 

tho s e se rvic e s shall b e con s ider e d payment in full 

for thos e authorized services. 



Statutory Authority G.S. 130A-205. 

.0413 DIAGNOSTIC SERVICES 

(a) Financial assistance shall be provided for 
primary diagnostic services, up to two visits on an 
outpatient basis or up to one day on an inpatient 
basis per year for each patient, subject to 
determination of patient eligibility and availability 
of funds. The actual number of outpatient visits or 
inpatient days authorized for reimbursement shall 
be determined by the physician consultant to the 
program, based on the medical condition of the 
patient, the procedure to be performed, and a 
reasonable recovery from the procedure. 

( 1 ) Applications for inpatient diagnostic 
services will be considered only when 
accompanied by a written statement 
from the attending physician listing: 

(A) the medical reason inpatient services 
are required, and 

(B) the medical reason such services 
cannot be performed on an outpatient 
basis. 

(2) The statement in Subparagraph (a)(1) of 
this Rule may be jn the form of workup 
protocol, clinical notes, medical 
history, or other medical document jn 
lieu of a separately prepared statement; 
however, any such documentation must 
give adequate information to justify an 
inpatient admission, and must bear the 
name of the attending physician. 

(3) The statement in Subparagraph (a)( 1 ) of 
this Rule shall be reviewed by the 
physician consultant to the cancer 
program who shall assess the medical 
need for inpatient diagnostic services. 

(4) If the physician consultant to the cancer 
program does not recommend inpatient 
services for a patient, the cancer 
program shall only authorize 
reimbursement for outpatient diagnostic 
services, and only to the extent 
recommended by the physician 
consultant. 



£2] 

Lii 

14) 
15] 
16] 
II] 



(b) Bills for authorized diagnostic services will 
be paid, but the cancer program shall not pay for 
any services rendered that are not authorized. 

(c) The following diagnostic procedures and 
accompanying biopsy, when appropriate, will be 
covered by the cancer program on an outpatient 
basis in a physician's office, emergency, or 
outpatient department whenever possible. These 
procedures shall be performed only by a physician 
and reimbursement only to those physicians listed 
on a roster with the cancer control program. 
Requests for inclusion on the roster shall be sent to 
the cancer control program at the principal address 
of the Division and shall include an indication of 
the availability of equipment necessary to complete 
the procedure. The letter must be signed by the 
physician, or by each physician requesting 
rostering in a group practice. Rosterable 
procedures include: 

( 1 ) bronchoscopy, 
colonoscop y, 
colposcopy, 

cryosurgery of the cervix, 
cystoscopy, 
esophagogastroscopy. 
rectosigmoidoscopy. 

(d) Any diagnostic procedure that is medically 
indicated and not otherwise available at a local 
health department is sponsorable without a 
rostering requirement, except for those diagnostic 
procedures specifically stated in Paragraph (c) of 
this Rule. 

(e) Sputum cytology, urine cytology and biopsy 
examination must be done by a pathologist. 

Statutory Authority G.S. 130A-220. 

.0414 TREATMENT SERVICES 

(a) Financial assistance is provided for treatment 
services, up to 8 days of inpatient service or up to 
16 outpatient visits per year for each patient, 
subject to determination of patient eligibility and 
availability of funds. The actual number of 
inpatient days or outpatient visits authorized for 
reimbursement shall be determined by the 
physician consultant to the program, based on the 
medical condition of the patient, the procedure to 
be performed, and a reasonable recovery from the 
procedure. 

(b) Bills for authorized treatment services will be 
paid, but the cancer program shall not pay for any 
services rendered that are not authorized. 

Statutory Authority G.S. 130A-205. 



1206 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



ill 
13] 



.0415 COVERED SERVICES 

(a) An eligible patient may be covered for the 
following screening and follow-up services: 

(1) breast cancer screening services; 

cervical cancer screening services; 

follow-up for breast cancer screening 

services; and 
(4) follow-up for cervical cancer screening 

services. 

(b) An eligible patient may be sponsored for the 
treatment of cancer by surgery, radiation therapy, 
chemotherapy, or immunotherapy. 

(c) Physical therapy following surgery, where 
medically indicated, is an approved treatment 
service on an inpatient and outpatient basis. 
Hospitals and physicians are encouraged to utilize 
home health agencies for this service whenever 
possible. Advance application should be made by 
local home health agencies for sponsorship of this 
service. 

(d) Service Restrictions: 

(1) The Cancer program will not sponsor 
palliative treatment of any kind. 

(2) The Cancer program will not pay for 
blood, but may cover the cost of blood 
administration. 

(3) Dental surgery is not sponsored, but 
nondental oral surgery performed for 
the diagnosis or treatment of cancer is 
sponsorable. 

(4) The Cancer program shall not sponsor 
late discharge fees, transportation, 
telephone calls, or other miscellaneous 
charges while the patient is receiving 
services. 

(5) Cosmetic surgery is not sponsored 
unless performed in conjunction with 
the removal of cancerous tissue. 

(6) Ancillary diagnostic studies shall be 
authorized only when they are directly 
related to the confirmation of a 
diagnosis of cancer, as determined by 
the physician consultant to the program. 

(7) The program shall not authorize 
reimbursement for routine follow-up 
office visits after completion of a 
definitive course of diagnostic studies 
or treatment. However, the program 
may consider a request for the 
definitive diagnosis or treatment of a 



(8] 



recurrent disease. 



Colposcopy must be performed on all 
sponsorable patients to determine 
appropriate therapy for cervical 
intraepithelial neoplasia. Local cervical 



therapy must be used when colposcopic 
findings confirm this as appropriate. 
Diagnostic or therapeutic conizations of 
the cervix will be approved only after 
colposcopic findings indicate this is 
absolutely necessary, and only on an 
outpatient basis unless extreme 
circumstances are documented. 
Conization 



sponsored 
following 
documented 



of the cervix will be 
if one or more of the 
conditions are met and 



1A] 



1Q 



Unsatisfactory colposcopy due to the 
lesion extending into the endocervical 
canal; 

Positive endocervical curretage; or 
Cytologic or histologic suspicion for 
invasive cancer. Hysterectomy will 
not be sponsored as a primary therapy 
for cervical intraepithelial neoplasia. 

(e) Chemotherapy may be authorized for 
testicular carcinoma, Hodgkin's disease, histiocytic 
lymphoma, choriocarcinoma m women, WilirTs 
Tumor, and breast cancer. Other conditions will 
be evaluated on an individual basis. All requests 
for chemotherapy shall be accompanied by a 
protocol describing the treatment being requested. 

(f) Overnight accommodations in a residential 
care facility (motel, home, boarding house, 
ambulatory care facility, etc.) and meals for 
patients receiving cancer diagnostic or treatment 
services on an outpatient basis shall be sponsored 
by the cancer program under the following 
conditions: 

(1) The patient's residence must be at least 
50 miles from the medical facility 
providing the outpatient services. 

(2) The residential care facility must be 
approved for participation by the cancer 
program. 

(3) The patient must meet all medical 
eligibility requirements as stated in Rule 
.0417, and all financial eligibility 
requirements as stated in 15A NCAC 
24 A. 

(4) Reimbursement for actual expenses 
shall not exceed the maximum 
allowable subsistence (lodging and 
meals) for state employees in the course 
of their official duties, based on those 
rates of reimbursement in effect at the 
time of the authorization of residential 
care by the cancer program. 
The cancer program shall not reimburse 
for any incidental expenses incurred as 



151 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1207 



PROPOSED RULES 



a result of the use of a residential care 
including 



transportation. 



16] 



facility, 
telephone, etc. 

Cancer program authorization of 
residential care shall be limited to the 
maximum number of days of co\'erage 
as provided by Rules .0413(a) or 
.0414(a) of this Subchapter, except that 
the cancer program shall sponsor 
continuous (weekend) coverage of 
residential care during the period in 
which outpatient services are being 
rendered. provided that when 
residential care begins or ends on a 
Saturday or Sunday, reimbursement for 
those weekend days shall not be 



ill 



sponsored. 
Applications 



for authorization 



requesting residential care shall state 
the number of days such residential 
care which will be required, as well as 
the dates of service during which 
outpatient diagnostic or treatment 
services shall be rendered. 

Statutory Authority G.S. 130 A -205; Sec. 310 & 
317 Public Health Services Act, as amended. 

.0416 FINANCIAL ELIGIBILITY' 

(a) Patients who are at or below 200 percent of 
the Federal Poverty Guidelines in effect on July 1 
of each fiscal year are financially eligible to 
receive services specified at Rule .0415(a). The 
Federal Poverty Guidelines are incorporated by 
reference including subsequent amendments and 
editions. This material is available for inspection 
at fhe Department of Environment. Health, and 
Natural Resources. Comprehensive Breast and 
Cervical Cancer Program. Division of Adult 
Health. 1330 St, Mary's Street. Raleigh. North 
Carolina. Copies of ffie Federal Poverty 
Guidelines may be obtained at no cost from the 
Comprehensive Breast and Cervical Cancer 
Control Program. Division of Adult Health. PO 
Box 27687. Raleigh. North Carolina 27611-7687. 

(b) Financial eligibility for the Comprehensive 
Breast and Cervical Cancer Control Program shall 
be determined by participating providers by a 
signed declaration of gross income and family size 
by the patient or a person responsible for the 
patient. 

(c) Once a patient is determined to be financially 
eligible for the Comprehensive Breast and Cervical 
Cancer Control Program, that eligibility shall 
continue for the duration of the breast and cervical 



cancer screening and follow-up services. up_ to a 
maximum of one year. 

(d) The participating provider shall document 
each financial eligibility determination for breast 
and cervical cancer screening and follow-up 
services on a form provided by the Comprehensive 
Breast and Cervical Cancer Control Program. 

(e) The participating provider is authorized to 
require substantiating documentation when making 
financial eligibility determination. 

(f) Financial eligibility for the cancer program 
shall be determined in accordance with rules found 
in 15A NCAC 24A. 

Statutory Authority G.S. 130A-205; Sec. 301 & 
31 7, Public Health Services Act, as amended. 

.0417 MEDICAL ELIGIBILITY 

(a) Women who are age 40 or older are eligible 
to receive breast cancer screening and follow-up 
services. 

(b) Women who are age 18 or older, who are or 
have been sexually active are eligible to receive 
cervical cancer screening and follow-up services. 

(c) To be medically eligible for diagnostic 
authorization, a patient must have a condition 
strongly suspicious of cancer which requires 
outpatient or inpatient services to confirm the 
preliminary primary diagnosis. The program shall 
authorize only those services deemed medically 
necessary to confirm a preliminary primary 
diagnosis as determined by the physician 
consultant to fhe program. 

(d) Cervical intraepithelial neoplasia, defined as 
any condition suggestive of preinvasive cervical 
cancer (mild dysplasia, moderate dysplasia, severe 
dysplasia, or carcinoma in situ), is suspicious of 
cancer or its precursors and may be sponsored by 
the cancer program on the basis of cytologic or 
histologic evidence of cervical intraepithelial 
neoplasia. 

(e) Before treatment services can be authorized 
by the cancer program, all cases must be proven 
cancerous (positive pathology report). 

(f) Before the cancer program can authorize 
treatment services, the attending physician must 
certify that there is a reasonable chance the cancer 
can be cured or arrested. 

(g) All requests for treatment shall be reviewed 
by the physician consultant to fhe program. Such 
requests shall be authorized only after a 
determination by the physician consultant that 
there is a reasonable chance of cure or arrest of 
the disease and that the services to be provided are 
medically necessary' and reasonable. In making 



1208 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



this determination, the physician consultant may 
confer with the patient's attending physician, 
members of the Cancer Committee of the North 
Carolina Medical Society, and other physicians 
trained in the treatment of cancer. 



Statutory Authority G.S. 130A-205; Sec. 310 & 
31 7, Public Health Services Act, as amended. 

.0418 PROVIDERS PARTICIPATING IN 
THE CANCER PROGRAM 

(a) The Comprehensive Breast and Cervical 
Cancer Control Program may contract with local 
health departments, public and non-profit private 
entities, institutions, and agencies in order to carry 
out the purpose of the program. 

(b) To be eligible for participation in the 
diagnosis and treatment components of the cancer 
program, a hospital must have facilities to treat 
cancer with surgery, radiation, and radium. 
Hospitals with only two treatment modes but with 
an established referral system for the third mode 
are also eligible. Interim approval for 
participation may be granted by the head of the 
cancer program, with final approval pending 
review by the cancer committee of the North 
Carolina Medical Society. Services may also be 
provided in a physician's office or other outpatient 
facility. 

(c) A patient may receive services in the hospital 
or physician's office of his choice provided that 
hospitals services are rendered in a hospital that 
has been approved in accordance with Paragraph 
(b) of this Rule. A list of such hospitals may be 
obtained from the head of the cancer program at 
the principal address of the Division of Adult 
Health. 

(d) When a request 
approved, a copy of the authorization 



for authorization 



will 



is 

be 



returned to the provider of record (hospital or 
physician whose name a ppears on the request for 
authorization). The provider of record shall 
forward copies of the authorization to aU other 
providers of those services listed in the request for 
authorization. 

(e) The provider of record shall inform all other 
known providers of services listed in the request 
for authorization of any action taken by the cancer 
program or the office of purchase of care services 
including the authorization or denial of the request, 
issuance of case and authorization numbers, billing 
instructions, or any other communication from or 
action taken by the Division of Adult Health 
concerning cancer program reimbursement. 

(f) All claims for authorized services rendered 



shall be processed in accordance with rules found 
in 15A NCAC 24A. 

(g) Assistant surgeon's fees will be paid on 
those authorized cases in which the procedures 
cannot be performed without surgical assistance. 
The bill for the assistant surgeon's fee should be 
submitted jointly with the surgeon's bill. 

(h) Claims for payment should be sent to the 
office of purchase of care services at the principal 
address of the Department. 

Statutory Authority G.S. 130A-205; Sec. 310 & 
317, Public Health Services Act, as amended. 

.0419 PATIENT APPLICATION PROCESS 

(a) Patients may apply for breast and cervical 
cancer screening and follow-up services at any 
local health department or at the office of a 
provider participating in the Comprehensive Breast 
and Cervical Cancer Control Program under an 
arrangement with a participating local health 
department. Copies of the list of participating 
local health departments may be inspected or 
obtained at no cost from the Comprehensive Breast 
and Cervical Cancer Control Program at the 
principal addres s of the Division. 

(b) Application forms approved by the Division 
may be requested by the provider from the cancer 
program at the principal address of file Division. 

(c) The authorization and financial certification 
forms are to be completed in accordance with the 
rules found in 15A NCAC 24A and the directions 
printed on the forms. 

(d) The authorization request form must be 
received with all pertinent information completed. 
All request forms that are received that are 
incorrect or incomplete will be returned 
unauthorized to the provider of record for 
correction or completion. All requests for 
authorization must contain the following 
information: 



(1) Requests for diagnosis must contain all 
patient biographical information; where 
services are to be given and date of 
first service; preliminary primary 
diagnosis; services to be rendered; 
medical justification if inpatient services 
are being requested; and attending 
physician name, office address, 
telephone number and signature. 

(2) Requests for treatment services must 
contain all patient biographical 
information; where services are to be 
given and date of first service; 
pathological diagnosis and stage of 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1209 



PROPOSED RULES 



disease; five-year survival rate of 
disease and declaration that the disease 
has a reasonable chance of cure; 
services to be rendered; and attending 
physician name, office address, 
telephone number, and signature. 

(e) Separate applications for authorization are 
necessary for diagnosis or treatment. 

(f) In cases in which rt [s difficult to determine 
whether the services to be rendered are diagnostic 
or treatment, such as the removal of an entire 
tumor for biopsy, an application for diagnostic 
services should be submitted first. 

(g) When treatment is being requested, a copy 
of a positive pathology report stating the cytologic 
or histologic presence of cancer, and dated no 
more than 30 days prior to initiation of the 
requested services, must accompany the request for 
authorization. The program has the right to 
request additional medical documents that are 
deemed necessary for a proper determination of 
medical eligibility prior to authorization. The 
patient signature on the financial eligibility form 
shall serve as a valid patient release for such 
medical information to be submitted to the 
program. 

(h) The original completed forms, and copies of 
any medical documents, should be forwarded to 



the cancer program. In accordance with the rules 
found m 15A NCAC 24A, the cancer program will 
inform the provider of record whether the 
application is authorized. Providers are 

encouraged to retain copies of all materials sent to 
the cancer program pending authorization or 
denial. 

0j For emergency authorization, call (919) 
733-7081 . Emergency admissions are rarely 
approved and only for extreme causes. Interim 
approval can be granted over the telephone 
provided the patient meets all eligibility 
requirements. However, the written application 
must be reviewed before final authorization can be 
granted. Information required during a telephone 
request for emergency authorization will include, 
at least, the following information: 

( 1 ) patient biographical information, 

where services are to be provided, 

nature of emergency, 

services being requested, 

name and telephone number of caller, 

name and telephone number of 

admitting physician. 
All telephone requests for emergency 
authorization shall be reviewed by and receive 
concurrence from the physician consultant to the 



ill 

O) 
(41 

'A' 
(6) 



cancer program after a telephone conference with 
the admitting physician. If a request for an 
emergency authorization is not approved, the 
cancer program will consider authorization on a 
routine basis. If the information that is 
communicated in the telephone request is not 
substantiated i_n the written authorization request, 
the emergency authorization shall immediately be 
cancelled. 

(j) The cancer program is not responsible for 
any case which has not been requested and 
authorized, nor for any approved services that are 
not specifically requested and authorized. 

(k) The program will not authorize services that 
are submitted on authorization forms that are not 
currently in use; all requests submitted on outdated 
or invalid forms will be returned unauthorized to 
the provider of record, accompanied by a supply 
of current forms for resubmission of the request 
and submission of future requests. 

Statutory Authority G.S. 130A-205. 

.0420 REPORTING OF CANCER 

Every physician shall report cancers as required 
by G.S. 130A-209, in the manner prescribed by 
15A NCAC 26. 

Statutory Authority G.S. 130A-209. 

.0421 CANCER REGISTRY 

Rules governing the administration of the central 
cancer registry are found in 15A NCAC 26. 

Statutory Authority G.S. 130A-205. 

.0422 CONFIDENTIALITY 

(a) The clinical records of individual patients 
submitted to the cancer control reimbursement 
program shall be confidential and shall not be 
public records open to inspection. Only personnel 
authorized by the head of the cancer control 
program and other individuals authorized by the 
head of the cancer control program or his designee 
pursuant to (cj of this Rule shall have access to 
the records. 

(b) The information contained in the clinical 
records of individual patients may be transferred to 
computer-compatible means of data entry. Only 
personnel authorized by the head of the cancer 
control program to use computers, terminals, 
programs, data files, and other computer hardware 
or software, involved in maintaining patient 
information shall have access to them. 

(c) Clinical information in possession of the 



1210 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



cancer control reimbursement program may be 
disclosed in the following circumstances when 
authorized by the head of the cancer control 
program or his designee: 

(1) A patient shall have access to review or 
obtain copies of his records; 

(2) A person who submits a valid 
authorization for release shall have 
access to review or obtain copies of the 
information described ]_n the 
authorization for release; 

(3) Information may be disclosed in 
response to a valid court order. 

(d) The cancer control program may release 
statistical information and data based on client 
information so long as no information identifying 
individual patients is released. 

(e) The head of the cancer control program shall 
make known to all individuals with access to 
patient information submitted to the cancer control 
program the privileged and confidential nature of 
such information. 

Statutory Authority G.S. I30A-205. 



Control Program Reimbursement Rate, the local 
health department shall reimburse the program the 
difference between the total amount reimbursed 
from all sources and the Comprehensive Breast 
and Cervical Cancer Control Program. 

Statutory Authority G.S. 130A-205; Sec. 310 & 
31 7, Public Health Services Act, as amended. 

.0425 REIMBURSEMENT FUNDS: THIRD 
PARTY PAYORS 

Comprehensive Breast and Cervical Cancer 
Control Program Reimbursement funds shall be 
used to pay for services not reimbursed by a third 
party payor. A participating provider must take 
reasonable measures to determine and subsequently 
collect the full legal liability of third party payors 
to pay for services reimbursed by the program 
before requesting payment from the 
Comprehensive Breast and Cervical Cancer 
Control Program. 

Statutory Author it}' G.S. 130A-205; Sec. 310 & 
317, Public Health Services Act, as amended. 



.0423 BILLING FOR BREAST AND 

CERVICAL CANCER SERVICES 

If a patient's gross family income is at or below 
200 percent of the Federal Poverty Guidelines, the 
participating provider may bill the Comprehensive 
B reast and Cervical Cancer Control Program. 

Statutory Authority G.S. 130A-205; Sec. 310 & 
317, Public Health Services Act, as amended. 

.0424 BREAST AND CERVICAL CANCER 
CONTROL PROGRAM 
REIMBURSEMENT RATES 

(a) Local health departments that contract for 
breast and cervical cancer screening and follow-up 
services funds shall be reimbursed for services 
provided to eligible patients in an amount based on 
the Comprehensive Breast and Cervical Cancer 
Control Program Reimbursement rate in effect at 
the time service is rendered, as specified in Rule 
.0427 of this Section. 

reimbursement 



lb) 



Claims for 
Breast 



from 
and Cervical Cancer 



Comprehensive 
Control Program must be documented and reported 
on a quarterly basis on a form provided by the 
program. If after charging the program, the 
agency receives payment from the patient or other 
third party that would result in the local health 
department receiving more than the 
Comprehensive Breast and Cervical Cancer 



.0426 QUALITY ASSURANCE FOR BREAST 
AND CERVICAL CANCER SERVICES 

(a) Facilities performing screening 
mammograms as a part of breast cancer screening 
and follow-up services under this Rule shall be 
certified in accordance with rules codified in 10 
NCAC 3W .0200 - Mammography Certification 
and be accredited before January f, 1993 by the 
American College of Radiology for the 
performance of mammography screening. Copies 
of 10 NCAC 3 W. 0200 may be inspected at or 
obtained at no cost from the Comprehensive Breast 
and Cervical Cancer Control Program. 

(b) Laboratories evaluating Pap smears as a part 
of cervical cancer screening and follow-up services 
under this section shall be certified in accordance 
with rules codified in W NCAC 3W .0100 -_ Pap 
Smear Certification 
.0100 n 



be 



Comprehensive Breast 
Control Program. 



Copies of K) NCAC 3W 

obtained at no cost from the 

and 



Cervical Cancer 



Statutory Authority G.S. 130A-205; Sec. 310 & 
317, Public Health Services Act, as amended. 

.0427 REIMBURSEMENT RATES 

(a) The cancer control reimbursement program 
shall reimburse providers of authorized services to 
eligible patients as follows: 

(1) Breast and cervical cancer screening 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1211 



PROPOSED RULES 



(2) 



and follow-up services shall be 
reimbursed at the lower of the provider 
rates or the Medicaid rates in effect at 
the time the services are provided. 
Inpatient hospitalization services shall 
be reimbursed at the medicaid rate in 
effect at the time the claim is received 
by the Division. When the medicaid 
per diem rate changes to the "excess 
days" per diem rate as provided in the 
medicaid reimbursement plan in effect 



ill 



at the time the claim is received by the 
Division, the cancer program shall 
reimburse at the "excess days" rate. 
Professional services. outpatient 
services, and all other services not 
covered by Subparagraph (a)(2) of this 
Rule shall be reimbursed at the 
medicaid rate in effect at the time the 
claim is received by the Division. 



(4) Services for which the medicaid 

program does not have a reimbursement 

rate shall be reimbursed according to a 

schedule of payments developed by the 

Division. Copies of this schedule may 

be inspected at or obtained from the 

Office of Medical Care Services. 

(b) If a provider has accepted partial or total 

payment from the cancer program for particular 

services, the Division's reimbursement rate for 

those services shall be considered payment in full 

for those authorized services. 

Statutory Authority- G.S. 130A-205; Sec. 310 & 
317, Public Health Services Act, as amended. 



sfisfi}fiif%cif>fiif^:if%!Sf 



>: :< ~M x >i 



/Votice is hereby given in accordance with G.S. 
150B-21. 2 that the EHNR - Commission/or Health 
Services intends to amend rulefsj cited as ISA 
NCAC19A .0502 - .0503. 

1 he proposed effective date of this action is 
January 4. 1993. 

1 he public hearing will be conducted on the 
following dates, times and locations: 

October 13, 1992 

7:30 p.m. 

Room 204, Buncombe Co. Courthouse 

60 Court Plaza 



Asheville, N. C. 

(Main entrance locked at night: use ground floor 

side entrance on College Street) 

October 19, 1992 

1:30 p.m. 

Ground Floor Hearing Room 

Archdale Building 

512 N. Salisbury Street 

Raleigh, N. C. 



R 



eason for Proposed Action: 



15 A NCAC 19A .0502 - .0503 - Under 
immunization of preschoolers creates the potential 
for outbreaks of measles, mumps, pertussis, and 
other vaccine preventable diseases, along with 
attendant severity and morbidity. Non-medicaid 
eligible children seen in community, migrant, and 
rural health centers and those seen in private 
physician 's offices and whose family income 
exceeds the federal poverty level by 185% 
frequently do not get age-appropriate vaccinations 
because of the inconvenience of visiting multiple 
providers. The centers and physicians ' office need 
to be able to take advantage of all opportunities to 
immunize small children by having access to state- 
supplied vaccine. To some extent this will 
decrease the staffing burden of local health 
departments. $950,000 was appropriated for this 
purpose by the 1992 General Assembly. 

Lsonvnent Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P. O. Box 629, 
Raleigh. NC 27602-0629, (919) 733-4618. If you 
desire to speak at the public hearing, notify John 
P. Barkley at least three days prior to the public 
hearing. Oral presentation lengths may be limited 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT .ALL 
INTERESTED AND POTENTIALLY AFFECTED 
PERSONS. GROUPS. BUSINESSES, 



1212 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



ASSOCIATIONS, INSTITUTIONS, OR AGENCIES 
MAKE THEIR VIEWS AND OPINIONS KNOWN 
TO THE COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL 
PROVISIONS OF THE PROPOSED RULES. THE 
COMMISSION MAY MAKE CHANGES TO THE 
RULES A T THE COMMISSION MEETING IF THE 
CHANGES COMPLY WITH G.S. 150B-21.2(f). 

tLditor's Note: These Rules have been filed as 
temporary amendments effective on August 26, 
1992 for a period of 180 days or until the 
permanent rule is effective, whichever is sooner. 

CHAPTER 19 - HEALTH: EPIDEMIOLOGY 

SUBCHAPTER 19A - COMMUNICABLE 
DISEASE CONTROL 

SECTION .0500 - PURCHASE AND 
DISTRB3UTION OF VACCINE 

.0502 VACCINE FOR PROVIDERS 

OTHER THAN LOCAL HEALTH 
DEPARTMENTS 

(a) The Department of Environment, Health, 
and Natural Resources provides vaccines required 
by law free of charge to physicians and other 
health care providers to administer to medically 
indigent patients. — These vaccines arc provided to 
physicians and other health care providers by local 
health department s acting as agents of the state, the 

to 
the 
and 



following providers for administration 
individuals who need vaccines to meet 



requirement of G.S. 130A-152, 
15A NCAC 19A .0401: 



130-155.1 



ill 
ill 
(3) 



Community, migrant, and rural health 
centers; 

Colleges and universities for students; 
and 

Physicians and other health care 

providers to administer to patients 

whose gross family income is less than 

or equal to 185 percent of the federal 

poverty level. 

(b) Required vaccines shall be distributed by 

local health departments operating as agents of the 

State to providers listed in Subparagraphs (a)(2) 

and (3) of this Rule. 

(&) £c] Private — physicians — and — health — eafe 
pProviders authorized in Paragraph (a) of this Rule 
shall be eligible to receive free vaccines from the 
Department only if they sign an agreement with a 



local h e alth d e partm e nt s e rving their praetioe ar e a 
the Department . This agreement will be prepared 
by the Immunization Branch and will require the 
phy s ioians and h e alth car e providers to administer 
such vaccines only to eligible patients, to charge 
only a reasonable administration fee, to submit 
monthly vaccine reports on a form prepared by the 
Immunization Branch by the fifth day of each 
month, to report adverse vaccine reactions through 
the F e d e ral Monitoring Vaccine Adverse Event 
Reporting System (VAERS) for Advers e Ev e nto 
Following Immunization (MSAEFI) , to obtain a 
signed Important Information Statement Parent 
Patient Notification (PPN) for each dose of vaccine 
administered and to retain the signed portion for a 
period of 10 years following the end of the 
calendar year in which the form was signed, or for 
10 years following the recipient's age of majority, 
whichever is longer, and upon request, furnish 
copies of the signed portion to the abov e local 
health department or the Department C e nters for 
Diseas e Control, Department of Health and Human 
S e rvices , to keep a record of the vaccine 
manufacturer, lot number, and date of 
administration for each dose of vaccine 
administered, to allow periodic inspection of their 
vaccine supplies and records by the Immunization 
Branch, and to comply with the rules of this 
Section. 

(e-) — Patients are considered m e dically indig e nt 
and th e refor e eligible if their gross family incom e 
i s le ss than th e f e d e ral pov e rty l e v e l. 

(d) A physician or health car e provider who 
fails to submit timely and accurate reports, as 
required in paragraph (be), twice in any 12 month 
period shall have their eligibility to receive state 
vaccine suspended for a period of one year. A 
phy s ician or health car e provider who fails to 
comply with any of the other requirements of this 
Rule may have their eligibility suspended by the 
Department for a period determined by the 
Department and may be subject to an action 
brought pursuant to G.S. 130A-27. All 

suspensions of eligibility shall be in accordance 
with G.S. 130A-23. 

Authority G.S. 130A-152; 130A-155.1; S.L 1986, 
c. 1008, s. 2; S.L. 1987, c. 215, s. 7. 

.0503DISTRIBUTION OF VACCINE TO 
COLLEGES AND UNTVERSmES 

{a) — The Department of Environment, Health, 
and — Natural — Resources — may — provide — vaccine s 
required by law to North Carolina univer s ities and 
colleges to admini s ter to eligible college students 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1213 



PROPOSED RULES 



who n ee d vaccin e s to m ee t th e r e quir e ments of 
G.S. 130A 155.1 and 15A NCAC 19A .0 4 01. 
Th e s e vaccin e s may b e provided to univ e rsities 
and coll e g e s by local h e alth d e partm e nts acting as 
ag e nt s of th e stat e . 

fh) — A colleg e or univ e r s ity s hall b e eligible to 
r e c e iv e vaccin e s from th e D e partm e nt only if it 
s ign s — an — agr ee m e nt — with — the — lee&l — h e alth 
d e partm e nt — se rving — the — county — tft — which — h* — is 
locat e d. — This agr ee m e nt shall b e pr e par e d by the 
Immunization Branch and shall r e quire th e coll e g e 
or univ e rsity to administ e r s uch vaccin e s only to 
e ligibl e stud e nts; to charg e only th e amount the 
provid e r paid for th e vaccin e and a reasonable 
administration foe. if anv: bv th e fifth day of e ach 



form 



month submit monthly vaccin e r e ports on a 
pr e par e d by th e Immunization Branch; to report 
adv e r se — vaccin e — r e actions — through th e — F e d e ral 
Monitoring Sy s t e m for Adv e rs e Ev e nts Following 



mmunization — (MSAEFI); — te — obtain — a — sign e d 



Important Information Stat e m e nt for each dose of 
vaccin e — admini s t e r e d — and — fe — r e tain — th e sign e d 
portion for a p e riod oft e n y e ars following th e end 
of th e cal e ndar year in which th e form was signed, 
or for t e n y e ars following th e r e cipi e nt's ag e of 
majority, which e v e r i s long e r, and upon r e qu es t, 
furnish copi es of th e s ign e d portion to any of the 
following ag e nci es : — th e D e partment. — th e abov e 
local h e alth d e partm e nt, or th e C e nt e rs for Di se a se 
Control. — D e partm e nt — ef — H e alth — and — Human 
S e rvic es ; — te — leeee — a — r e cord — e# — the — vaccin e 



manufacturer. let numb e r. and dat e 



4" 



administration fer- — eaeh dos e — ef- — vaccin e 

administ e r e d; to allow p e riodic inspection of it s 
vaccin e s uppli es and r e cords by th e Immunization 
Branch; — and to comply with — th e rules of this 
S e ction. 

fe-) — Stud e nt s s hall b e e ligibl e to receiv e s tat e 
provid e d vaccin e s only if th e dos e is nece ss ary to 
bring — the — s tud e nt — hrte — complianc e — with — G.S. 
130A 155.1 and 15A NCAC 19A .0 1 01. 

fd-) — A coll e g e or univ e r s ity that fails to submit 
tim e ly — and — accurat e — r e ports. — as — requir e d — m 
Paragraph (b) of this Rul e , twic e in any 12 month 
p e riod shall hav e it s e ligibility to rec e iv e stat e 
provid e d vaccin e s u s p e nd e d for a period of one 
year. — All susp e nsions of e ligibility shall b e in 
accordanc e with G.S. 130 A 23. 



Statutory Authority G.S. 130A-155.1; 130A-433. 



ifi V y y >fi 



^^Sfr^VV*^^ 



15 0B -2 1.2 that the EHNR - Commission for Health 
Services intends to amend rule(s) cited as 15A 
NCAC 19A .0401, .0404; 19B .0503. 

1 he proposed effective date of this action is 
January 4, 1993. 

1 he public hearing will be conducted on the 
following dates, times and locations: 

October 13, 1992 

7:30 p.m. 

Room 204, Buncombe Co. Courthouse 

60 Court Plaza 

Asheville, N. C 

(Main entrance locked at night: use ground floor 

side entrance on College Street) 

October 19, 1992 

1:30 p.m. 

Ground Floor Hearing Room 

Archdale Building 

512 N. Salisbury Street 

Raleigh, N.C 



R 



N, 



otice is hereby given in accordance with G.S. 



eason for Proposed Action: 



15A NCAC 19A .0401 & .0404 - These additions 
are to make the hemophilus influenzae vaccine 
rules current regarding contraindications and with 
new stipulations for updating immunizations when 
vaccines are not started according to the 
recommended schedule. 

15A NCAC 19B .0503 - To distinguish the use of 
the alcoholic breath simulator with alcohol 
screening test devices and evidentiary instruments. 
This amendment will allow the simulator to be 
changed once a month rather than twice. It will 
also allow screening test devices to be verified 
every 30 days rather than every seven. 

Ksomment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P. O. Box 629, 
Raleigh, NC 27602-0629, (919) 733-4618. If you 
desire to speak at the public hearing, notify John 
P. Barkley at least three days prior to the public 
hearing. Oral presentation lengths may be limited 
depending on the number of people that wish to 



1214 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written conmtents will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL 
INTERESTED AND POTENTIALLY AFFECTED 
PERSONS, GROUPS. BUSINESSES, 
ASSOCIATIONS, INSTITUTIONS, OR AGENCIES 
MAKE THEIR VIEWS AND OPINIONS KNOWN 
TO THE COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL 
PROVISIONS OF THE PROPOSED RULES. THE 
COMMISSION MA Y MAKE CHANGES TO THE 
R ULES A T THE COMMISSION MEETING IF THE 
CHANGES COMPLY WITH G.S. 150B-2I.2(f). 

CHAPTER 19 - HEALTH: EPIDEMIOLOGY 

SUBCHAPTER 19A - COMMUNICABLE 
DISEASE CONTROL 

SECTION .0400 - IMMUNIZATION 

.0401 DOSAGE AND AGE 

REQITREMENTS FOR 
IMMUNIZATION 

(a) Every individual in North Carolina required 
to be immunized pursuant to G.S. 130A-152 
through 130A-157 shall be immunized against the 
following diseases by receiving the specified 
minimum doses of vaccines by the specified ages: 

(1) diphtheria, tetanus, and whooping 
cough — five doses: three doses by age 
one year and two booster doses, one in 
the second year of life and the second 
on or after the fourth birthday and 
before enrolling in school (K.-1) for the 
first time; 

(2) oral poliomyelitis vaccine -- three doses 
of trivalent type by age two years and a 
booster dose of trivalent type on or 
after the fourth birthday and before 
enrolling in school (K-l) for the first 
time; two doses of enhanced-potency 
inactivated poliomyelitis vaccine may 
be substituted for two doses of oral 
poliomyelitis vaccine; 

(3) measles (rubeola) vaccine -- one dose of 
live, attenuated vaccine by age two 



years; 

(4) rubella vaccine -- one dose of live 
attenuated vaccine by age two years; 

(5) mumps vaccine — one dose of live 
attenuated vaccine by age two years; 

(6) Hemophilus influenzae, b, conjugate 
vaccine — three doses of HbOC or two 
doses of PRP-OMP by age one year 
and a booster dose of any type by the 
second birthday. 

(b) Notwithstanding the requirements of 
Paragraph (a) of this Rule: 

(1) An individual who has attained his or 
her seventh birthday without having 
been immunized against whooping 
cough shall not be required to be 
immunized with a vaccine preparation 
containing whooping cough antigen. 

(2) An individual who has been 
documented by serologic testing to have 
a protective antibody titer against 
rubella shall not be required to receive 
rubella vaccine. 

(3) An individual who has been diagnosed 
by a physician licensed to practice 
medicine as having measles (rubeola) 
disease shall not be required to receive 
measles vaccine. 

(4) An individual attending school who has 
attained his or her 18th birthday shall 
not be required to receive oral polio 
vaccine. 

(5) An individual born prior to 1957 shall 
not be required to receive measles 
vaccine. An individual who has 
attained his or her fiftieth birthday shall 
not be required to receive rubella 
vaccine . An individual who entered a 
college or university after his or her 
thirtieth birthday and before February 
1, 1989 shall not be required to meet 
the requirement for rubella vaccine. 

(6) Except as provided in Subparagraph 
(b)(8) of this Rule, the requirements for 
mumps vaccine, and for booster doses 
of diphtheria, tetanus, and whooping 
cough vaccine and oral poliomyelitis 
vaccine, shall not apply to individuals 
who enrolled for the first time in the 
first grade before July 1, 1987. 

(7) Individuals who receive the first booster 
dose of diphtheria, tetanus, and 
whooping cough vaccine on or after the 
fourth birthday shall not be required to 
have a second booster dose. 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1215 



PROPOSED RULES 



Individuals who receive the third dose 
of oral poliomyelitis vaccine on or after 
the fourth birthday shall not be required 
to receive a fourth dose. 

(8) Individuals attending a college or 
university shall be required to have 
three doses of diphtheria/tetanus toxoid 
of which one must have been within the 
last ten years. 

(9) Individuals born before October 1 , 
1991 shall not be required to be 
vaccinated against Hemophilus 
influenzae, b. Individuals who receive 
the first dose of Hemophilus influenzae, 
b± vaccine between the ages of 12-14 
months shall be required to have only 
two doses of HbOC or PRP-OMP. 
Individuals who receive the first dose of 
Hemophilus influenzae, b± vaccine on 
or after 15 months of age shall be 
required to have only one dose of any 
of the hemophilus influenzae conjugate 
vaccines, including PRP-D. 

Statutory Authority G.S. 130A-152(c); 130A-155. 1. 

.0404 MEDICAL EXEMPTIONS FROM 
IMMUNIZATION 

(a) Certification of a medical exemption by a 
physician pursuant to G.S. 130A-156 shall be in 
writing and shall state the basis of the exemption, 
the specific vaccine or vaccines the individual 
should not receive, and the length of time the 
exemption will apply for the individual. 

(b) The following are medical contraindications 
for which medical exemptions may be certified by 
a physician for immunizations required by G.S. 
130A-152: 

(1) Pertussis vaccine: 

(A) Permanent contraindications: 

(i) occurring within 48 hours after 
receipt of pertussis vaccine: 

(I) fever greater than 40.5 C 
(104.9 F); 

(II) hypotonic-hyporesponsive 
episode; 

(III) unusual high-pitched crying 
lasting three hours or more; 

(ii) seizure within 72 hours after 
receipt of pertussis vaccine; 

(iii) encephalopathy within seven days 
after receipt of pertussis vaccine; 

(iv) immediate allergic reaction to 
pertussis vaccine manifested by 
hives or anaphylaxis; or 



(v) documented history of culture 
confirmed pertussis disease. 
(B) Temporary contraindications: 

(i) undiagnosed, unstable, or 
evolving neurological conditions, 
including seizures; or 

(ii) acute febrile illness. 

(2) Diphtheria or tetanus toxoids: 

(A) Permanent contraindications: 
immediate allergic reaction to 
diphtheria or tetanus toxoids 
manifested by hives or anaphylaxis. 

(B) Temporary contraindications: acute 
febrile illness. 

(3) Measles or mumps vaccine: 

(A) Permanent contraindications: 

(i) significantly immunocom- 
promising conditions other than 
HIV infection; 

(ii) allergic reaction to eggs or 
neomycin manifested by 
anaphylaxis. 

(B) Temporary contraindications: 
(i) acute febrile illness; 

(ii) pregnancy. 

(4) Rubella vaccine: 

(A) Permanent contraindications: 

(i) significantly immunocom- 
promising conditions other than 
HIV infection; 

(ii) allergic reaction to neomycin 
manifested by anaphylaxis. 

(B) Temporary contraindications: 
(i) acute febrile illness; 

(ii) pregnancy. 

(5) Live polio vaccine: 

(A) Permanent contraindications: 

(i) significantly immunocom- 
promising conditions; 

(ii) significantly immunocom- 
promising condition in a 
household contact. 

(B) Temporary contraindications: 
(i) acute febrile illness; 

(ii) pregnancy. 

(6) Hemophilus influenzae vaccine: 

(A) Permanent contraindication: 
immediate allergic reaction manifested 
by anaphylaxis. 

(B) Temporary contraindications: 
(i) acute febrile illness; 

(ii) pregnancy. 

Statutory Authority G.S. 130A-1 52(c); 130A-156. 



1216 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



SUBCHAPTER 19B - INJURY CONTROL 



SECTION .0500 



.0503 



ALCOHOL SCREENING TEST 
DEVICES 



APPROVED ALCOHOL 
SCREENING TEST DEVICES: 
CALIBRATION 

(a) The following breath alcohol screening test 
devices are approved as to type and make: 

(1) ALCO-SENSOR (with two-digit 
display), made by Intoximeters, Inc. 

(2) ALCO-SENSOR III (with three-digit 
display), made by Intoximeters, Inc. 

(3) BREATH-ALCOHOL TESTER 
MODEL BT-3, made by RepCo., Ltd. 

(4) ALCOTEC BREATH-TESTER, made 
by RepCo., Ltd. 

(b) Calibration of alcohol screening test devices 
shall be verified at least once during each s e v e n 30 
day period of use by employment of a control 
sample from an alcoholic breath simulator,, or a an 
NALCO ethanol/gas standard. The device shall be 
deemed properly calibrated when the result of 0.09 
or 0. 10 is obtained. 

(1) Alcoholic breath simulators used 
exclusively for calibration of alcohol 
screening test devices shall have the 
solution changed every 30 days or after 
25 calibration tests, whichever occurs 
first. 

(2) Requirements of Paragraph (b) and 
(b)(1) of this Rule shall be recorded on 
an alcoholic breath simulator log 
designed by the Injury Control Section 
and maintained by the user agency. 

Statutory Authority G.S. 20-16.3. 



I\ otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for Health 
Services intends to amend rules cited as 15A 
NCAC 21F .0801 - .0804. 

1 he proposed effective date of this action is 
January 4, 1993. 

1 he public hearing will be conducted on at the 
times, dates and locations shown below: 



October 13, 1992 

7:30 p. m. 

Room 204 Buncombe County Courthouse 

60 Court Plaza 

Asheville, NC 

(Main entrance locked at night; use 

ground floor side entrance on College Street) 

October 19, 1992 

1:30 p.m. 

Ground Floor Hearing Room 

Archdale Building 

512 N. Salisbury Street 

Raleigh, NC 

MXeason for Proposed Action: The Children 's 
Special Health Services program wishes to extend 
coverage to children with special needs who are 
adopted independently or privately and on whose 
behalf requests have been made to waive financial 
eligibility. This proposed amendment will add 
children adopted independently. 

(comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P.O. Box 629, 
Raleigh, NC 27602-0629, (919) 733-4618. If you 
desire to speak at the public hearing, notify John 
P. Barkley at least 3 days prior to the public 
hearing. Oral presentation lengths may be limited 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commissions meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL 
INTERESTED AND POTENTIALLY AFFECTED 
PERSONS, GROUPS, BUSINESSES, 
ASSOCIATIONS, INSTITUTIONS, OR AGENCIES 
MAKE THEIR VIEWS AND OPINIONS KNOWN 
TO THE COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL 
PROVISIONS OF THE PROPOSED RULES. THE 
COMMISSION MAY MAKE CHANGES TO THE 
R ULES A T THE COMMISSION MEETING IF THE 
CHANGES COMPLY WITH G.S. 150B-21 .2(f). 



7:12 NORTH CAROLINA REGISTER September IS, 1992 



1217 



PROPOSED RULES 



CHAPTER 21 - HEALTH:PERSONAL 
HEALTH 

SUBCHAPTER 21F - CHILDREN'S 

SPECIAL HEALTH SERVICES: CHILDREN 

AND YOLTH SECTION 

SECTION .0800 - ADOPTION 

.0801 GENERAL PROVISION 

(a) If the requirements of this Section are met. 
a child with a support e d m e dical condition who 
has been legally adopted and has no natural parent 
with legal responsibility for the child, shall, after 
the final order of adoption, be considered a family 
of one under 15A NCAC 24A .0204(c) for 
purposes of determining financial eligibility for 
program support. 

<4» — Program s upport s hall b e provid e d only for 
thos e — program — s upport e d — condition s — that — afe 
confirm e d by a ro s t e r e d phy s ician to b e existing at 
th e tim e of adoption. — and will continue to b e 
contingent — upon — the — availability — ef 



-ided- 



jwe 5 

program fund s . 

(b)fe-> Authorization and payment for ee*t 
services shall be grant e d made pursuant to Section 
.0500 of this Subchapter and 15A NCAC 24A 
.0302 and .0303. 

(o After the adoption is completed, the agency 
handling the adoption shall inform the program of 
the following: 



ill 



the child's new name and address; and 



the adoptive parents' name and address. 
If the child was placed independently, the adoptive 
parents shall provide this information to the 
program. 

4-d4 Th e ag e ncy handling th e adoption shall 

inform th e program of th e n e w nam e , adoptiv e 
par e nt s and th e child' s addr ess aft e r th e adoption 
i s compl e t e d. 

Statutory Authority G.S. 130A-124. 

.0802 REQUIREMENTS FOR THE 
ADOPTIVE CHILD 

To be eligible for program support, the child 
must meet the following requirements: 

1 1 I The child must b e in th e custody of a 
county d e partm e nt of social s e rvic e s or 
an adoption agency lic e n se d in th e Stat e 
of North Carolina: 

f=-> Th e child mu s t have a program supported 
medical condition as provided in 15A 
NCAC 21F Ru4* .0303 e# — th+s 
Subchapter, which js documented by a 



physician rostered by the program to be 
existing at the time of adoption; and 
(2) The child must meet the residency 
requirements of 15A NCAC 24A 

.0201(b)(1). 

Statutory Authority G.S. 130A-124. 

.0803 REQUIREMENTS FOR THE 

ADOPTLNG FAMILY (REPEALED) 

To b e e ligibl e for program support, th e child's 
adoptiv e — family — must — m*et — the — following 
r e quir e m e nts: 

f4-) Th e family must submit e vidence that 

m e dical — in s uranc e — cov e rage — fef — the 
handicapping condition is e ith e r available 
or not availabl e : 

f2-( Wh e n insuranc e is availabl e th e adopting 

family — must — obtain — asd — maintain 
in s uranc e cov e rag e ; 



m- 



^fte — r es id e ncy — r e quir e ments — ef- — 1-§A 
NCAC 2 4 A .0201 must b e satisfied after 
th e adoption. 



Statutory Authority G.S. 130A-124. 

.0804 .APPLICATION FOR COVERAGE 
AFTER ADOPTION 

(a) Application for program support after post- 
adoption coverage shall be made on a form 
provided by the Department by the local agency 
having legal responsibility, in the case of a state or 
private agency placement, or by the adoptive 
parents, in the case of an independent placement. 
The application must be received by Children's 
Special Health Services prior to the final order of 
adoption, only after: 

{4-) Th e ag e ncy has pr e s e nted th e child to 



th e prosp e ctiv e adoptiv e family; 



m- 



^fte 



ag e ncy 
prosp e ctiv e 



1+^ 



discuss e d — with — the 



ISCUSS C 

adoptive family the 

financing and s ocial problems of th e 
child's handicap or m e dical condition; 



m 



Th e ag e ncy and th e family hav e agr ee d 

to th e plac e m e nt. 
fb-t — Applications shall b e mad e by th e ag e ncy- 
having l e gal r e sponsibility for the child and shall 
be — submitted — te — the — North — Carolina — adoption 
resource e xchang e , division of social services. 
D e partm e nt of Human R es ourc es , for forwarding 
to Childr e n's Sp e cial H e alth S e rvic e s. 

(e) Program — r e vi e w — aftd — approval. — ef 

di s approval, shall b e mad e prior to the final court 
ord e r for adoption in accordanc e with Rul e .0801 
of thi s S e ction. 



1218 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



PROPOSED RULES 



(b) Applications for state-agency-placed children 
shall be submitted to the North Carolina Adoption 
Resource Exchange, Division of Social Services, 
Department of Human Resources, for forwarding 
to Children's Special Health Services. 
Applications from private adoption agencies and 
for children adopted independently shall be 
submitted directly to the medical director of 
Children's Special Health Services, 

Statutory Authority G.S. 130A-124. 

TITLE 24 - INDEPENDENT AGENCIES 



depending on the needs of each individual project. 
Program funds will be used for one or more of the 
following: 

(1) Predevelopment costs; 

(2) Construction cost overruns; 

(3) Initial rent-up expenses; 

(4) Rent subsidies; 

(5) Finance expenses; and 

(6) Other expenses that ensure project or 
program feasibility. 

Statutory Authority G.S. 122A-5; 122A-5.1; 
122A-5.4. 



iVotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Housing 
Finance Agency intends to amend rule(s) cited as 
24 NCAC IK .0603 - .0605. 

1 he proposed effective date of this action is 
January 1, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on September 30. 1992 at the North Carolina 
Housing Finance Agency, 3300 Drake Circle, Suite 
200, Raleigh, NC 27607. 

Reason for Proposed Action: To modify Catalyst 
Loan program to make it tnore flexible. 

Ksomment Procedures: Written comments may be 
submitted to the APA Coordinator by October 15, 
1992. Oral comments may be presented at hearing 
on September 30, 1992. 

CHAPTER 1 - N.C. HOUSING FINANCE 
AGENCY 

SUBCHAPTER IK - MULTIFAMILY 
UNSUBSIDIZED RENTAL PROGRAM 

SECTION .0600 - CATALYST PROGRAM 
FOR NOT-FOR-PROFIT ORGANIZATIONS 

.0603 TYPES OF ASSISTANCE 

Program funds will be provided as grants or 
deferred payment loans, amortizing or 
nonamortizing, with extended loan terms. Loans 
will be secured by a promissory note and loan 
agreement, and where practical, by the low-income 
housing project. Interest, if any, will accrue 
annually at a rate established by the agency. 



.0604 REQUIREMENTS 

(a) Program eligibility will be restricted to 
not-for-profit organizations which are the principal 
sponsors of a low-income, rental housing project 
or a program to facilitate the development of low- 
income housing projects . 

(b) Program funds will be restricted to projects 
containing, or programs for, low-income housing 
units that are either newly constructed or acquired 
and substantially rehabilitated. Low-income units 
are those that are both income qualified, occupied 
by individuals whose income is 50 or below 60 
percent of the area median income, and affordable, 
with rents and utility allowance not exceeding 30 
percent of the eligible low-income household's 
gross income. 

(c) Projects must respond to local market 
demand, and mu s t show financial participation by 
a unit of local governm e nt. 

Statutory Author it}' G.S. 122A-5; 122A-5.1; 
122A-5.4. 



.0605 PROCEDURES 

(a) Program funds will be advertised statewide. 
unl e ss — the — agency — determines — that — because — ef 
inad e quat e r e spons e , th e s e targeting re s trictions 
s hall be waived. Projects and programs will be 
funded on a first-come, first-served basis until 
such time as the agency determines there are 
insufficient funds available or that the program 
should be discontinued. 

fl-) Each — county will — b e limit e d to — eee 

fund e d proj e ct by S e ptemb e r 30, 19 88 . 

(2) Each m e tropolitan statistical area will 

be limited to thr e e fund e d proj e cts by 
S e pt e mb e r 30, 1988. 

f^) Proj e cts will b e fund e d on a first come, 

fir s t s erved basis until 50 perc e nt of 
initial set asid e k committ e d; 



subsequ e ntly, proj e cts will be pooled at 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1219 



PROPOSED RULES 



regular int e rvals and rank e d aooording 

to proj e ct feasibility, local n e ed and the 

ability of the agency to achiovo an 

e quitabl e g e ographic distribution, 

(b) The program will require the completion and 

submission of these — documents an application 

prescribed by the agency. 

ft) Afl — application — prescrib e d — by — the 

agency; 

(2) A — letter — ef- — intent — from — a — w»t — e# 

government to provid e supplementary 
financing; and 

03 A l e tt e r of int e rest from investor s or 

int e rm e diaries conc e rning inv e stment in 
the tax credits. 
Th ese r e quir e m e nt s will b e d es crib e d in greater 
d e tail in th e application materials dev e lop e d by th e 
ag e ncy. 

Statutory Authority G.S. 122A-5; 122A-5.J; 
122A-5.4. 



1220 7:12 NORTH CAROLINA REGISTER September 15, 1992 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 143B- 
30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



AGRICULTURE 

Gasoline and Oil Inspection Board 

2 NCAC 42 .0102 - Definitions 

Agency Revised Rule 
2 NCAC 42 .0801 - Purpose and Applicability 

Agency Revised Rule 

Structural Pest Control Division 

2 NCAC 34 .0406 - Spill Control 

Agency Responded 
2 NCAC 34 .0603 - Waivers 

Agency Responded 
2 NCAC 34 .0902 - Financial Responsibility 

Agency Responded 

ECONOMIC AND COMMUNITY DEVELOPMENT 
ABC Commission 



RRC Objection 08/20/92 

Obj. Removed 08/20/92 

RRC Objection 08/20/92 

Obj. Removed 08/20/92 



RRC Objection 
No Action 
RRC Objection 
No Action 
RRC Objection 
No Action 



07/16/92 
08/20/92 
07/16/92 
08/20/92 
07/16/92 
08/20/92 



4 NCAC 2R .0702 - Disciplinary Action of Employee 

Rule Returned to Agency 
4 NCAC 2R .1205 - Closing of Store 

Agency Repealed Rule 
4 NCAC 2S .0503 - Pre-Orders 

Rule Returned to Agency 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

15A NCAC 7H .0306 - General Use Standards for Ocean Hazard Areas 
Rule Returned to Agency 



RRC Objection 

RRC Objection 
Obj. Removed 
RRC Objection 



05/21/92 
06/18/92 
05/21/92 
06/18/92 
05/21/92 
06/18/92 



RRC Objection 05/21/92 
06/18/92 



Departmental Rules 

15A NCAC U .0204 - Loans from Emergency Revolving Loan Accounts 

15A NCAC U .0302 - General Provisions 

15 A NCAC U .0701 - Public Necessity: Health: Safety and Welfare 

Environmental Health 

15 A NCAC 18A .3101 - Definitions 
Agency Revised Rule 

Environmental Management 



RRC Objection 06/18/92 
RRC Objection 06/18/92 
RRC Objection 06/18/92 



RRC Objection 
Obj. Removed 



06/18/92 
06/18/92 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1221 



RRC OBJECTIONS 



15 A NCAC 2D .0538 - Control of Ethylene Oxide Emissions 

Agency Revised Rule 
15A NCAC 2D .1104- Toxic Air Pollutant Guidelines 

Agency Revised Rule 
15A NCAC 2G .0601 - The Aquatic Weed Control Act 

Agency Revised Rule 
15A NCAC 20 .0302 - Self Insurance 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 



08/20/92 
08/20/92 
08/20/92 
08/20/92 
08/20/92 
08/20/92 
06/18/92 



Health: Epidemiology 



15A NCAC 19H .0402 - Documentary Evidence: Facts to be Established 

Agency Revised Rule 
15A NCAC 19H .0601 - Birth Certificates 

Agency Revised Rule 



RRC Objection 08/20/92 

Obj. Removed 08/20/92 

RRC Objection 06/18/92 

Obj. Removed 06/18/92 



Soil and Water Conservation 



15A NCAC 6E .0007 - Cost Share Agreement 
Agency Revised Rule 



RR C Objection 06/1 8/92 
Obj. Removed 06/18/92 



Wildlife Resources and Water Safety 



15A NCAC WE .0004 - Use of Areas Regulated 
Agency Revised Rule 



RRC Objection 06/18/92 
Obj. Removed 08/20/92 



HUMAN RESOURCES 

Aging 



10 NCAC 22R .0301 - Definitions 
Agency Revised Rule 
Agency Revised Rule 



RRC Objection 07/16/92 
RRC Objection 07/16/92 
Obj. Removed 08/20/92 



Day Care Rules 



10 NCAC 46D .0305 - Administration of Program 

Agency Revised Rule 
10 NCAC 46D .0306 - Records 

Agency Revised Rule 



RRC Objection 06/18/92 

Obj. Removed 06/18/92 

RRC Objection 06/18/92 

Obj. Removed 06/18/92 



Medical Assistance 



10 NCAC 50A .0305 - Appeal Decision 
Agency Revised Rule 



RRC Objection 08/20/92 
Obj. Removed 08/20/92 



Mental Health: General 



10 NCAC 14C . 1010 - Other Contracts 

Agency Revised Rule 
10 NCAC 14C .1115 - Funding Group Homes for Mentally Retarded Adults 
10 NCAC 14M .0704 - Program Director 

Agency Revised Rule 



RRC Objection 08/20/92 

Obj. Removed 08/20/92 

RRC Objection 08/20/92 

RRC Objection 05/21/92 

Obj. Removed 06/18/92 



LNSURANCE 



1222 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



RRC OBJECTIONS 



Departmental Rules 

77 NCAC 1 .0106 - Organization of the Department 
Agency Revised Rule 

Multiple Employer Welfare Arrangements 

77 NCAC 18 .0019- Description of Forms 

Seniors' Health Insurance Information Program 

77 NCAC 17 .0005 - SHI1P Inquiries to Insurers and Agents 

LICENSING BOARDS AND COMMISSIONS 

Dietetics/Nutrition 

21 NCAC 17 .0014 - Code of Ethics for Professional Practice/Conduct 
Agency Revised Rule 
Agency Revised Rule 

General Contractors 

21 NCAC 12 .0503 - Renewal of License 
Agency Revised Rule 

REVENUE 

Individual Income, Inheritance and Gift Tax Division 

17 NCAC 3B .0401 - Penalties 
1 7 NCA C 3B . 0402 - Interest 

Individual Income Tax Division 

7 7 NCA C 6B .0107 - Extensions 

17 NCAC 6B .0115 - Additions to Federal Taxable Income 

17 NCAC 6B .01 16 - Deductions from Federal Taxable Income 

1 7 NCA C 6B .0117 - Transitional Adjustments 

1 7 NCA C 6B . 3406 - Refunds 

STATE PERSONNEL 

Office of State Personnel 



RRC Objection 06/18/92 
Obj. Removed 06/18/92 



RRC Objection 06/18/92 



RRC Objection 06/18/92 



RRC Objection 05/21/92 
RRC Objection 05/21/92 
Obj. Removed 06/18/92 



RRC Objection 
Obj. Removed 



RRC Objection 
RRC Objection 



RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 



08/20/92 
08/20/92 



08/20/92 
08/20/92 



08/20/92 
08/20/92 
08/20/92 
08/20/92 
08/20/92 



25 NCAC IE .1301 - Purpose 

Agency Revised Rule 
25 NCAC IE .1302 - Policy 

Agency Revised Rule 
25 NCAC IE . 1303 - Administration 

Agency Revised Rule 
25 NCAC IE .1304 - Qualifying to Participate in 

Agency Revised Rule 
25 NCAC IE .1305 - Donor Guidelines 

Agency Revised Rule 



Voluntary Shared Leave Prgm 



RRC Objection 


07/16/92 


Obj. Removed 


08/20/92 


RRC Objection 


07/16/92 


Obj. Removed 


08/20/92 


RRC Objection 


07/16/92 


Obj. Removed 


08/20/92 


RRC Objection 


07/16/92 


Obj. Removed 


08/20/92 


RRC Objection 


07/16/92 


Obj. Removed 


08/20/92 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1223 



RRC OBJECTIONS 



25 NCAC IE . 1306 - Leave Accounting Procedures RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC 1H .0603 - Special Recruiting Programs RRC Objection 05/21/92 

Agency Repealed Rule Obj. Removed 06/18/92 

25 NCAC 11 .1702- Employment of Relatives RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC 11 . 1903 - Applicant Information and Application RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC 11 .2401 - System Portion I: Recruitment, Selection, & Advancement RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC 11 .2402 - System Portion II: Classification/Compensation RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC 11 .2403 - System Portion III: Training RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC 11 .2404 - System Portion IV: Employee Relations RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC 11 .2405 - System Portion V: Equal Emp Oppty /Affirmative Action RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC 11 .2406 - System Portion VI: Political Activity RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC U . 1005 - Eligibility for Services RRC Objection 05/21/92 

Agency Revised Rule Obj. Removed 06/18/92 



TRANSPORTATION 



Division of Highways 

19A NCAC 2B .0165 - Asbestos Contracts with Private Eirtm 



RRC Objection 08/20/92 



1224 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5 A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5A .0010 void as applied in Staujfer Information Systems, Petitioner v. Tfie North Carolina 
Department of Community Colleges and The North Carolina Department of Administration, Respondent and 
Die University of Southern California, Intervenor-Respondent (92 DOA 0666). 

15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - fflV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)( 10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Lewie, as Assistant Secretary of Health and State Health Director for the Department of Environment , 
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Department 
of Environment, Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief, Communicable Disease Control Section of the North Carolina Department of Environment , Health, and 
Natural Resources, Wayne Bobbin Jr. , as Chief of the HIV/STD Control Branch of the North Carolina 
Department of Environment, Health, and Natural Resources, Respondents (91 EHR 0818). 



7:12 NORTH CAROLINA REGISTER September 15, 1992 1225 



CONTESTED CASE DECISIONS 



J. his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



KEY TO CASE CODES 



ABC Alcoholic Beverage Control Commission DST 

BDA Board of Dental Examiners EDC 

BME Board of Medical Examiners EHR 

BMS Board of Mortuary Science 

BOG Board of Geologists ESC 

BON Board of Nursing HAF 

BOO Board of Opticians HRC 

CFA Commission for Auctioneers IND 

COM Department of Economic and Community INS 

Development LBC 

CPS Department of Crime Control and Public Safety MLK 

CSE Child Support Enforcement NHA 

DAG Department of Agriculture OAH 

DCC Department of Community Colleges OSP 

DCR Department of Cultural Resources PHC 

DCS Distribution Child Support 

DHR Department of Human Resources POD 

DOA Department of Administration SOS 

DOJ Department of Justice SPA 

DOL Department of Labor 

DSA Department of State Auditor WRC 



Department of State Treasurer 
Department of Public Instruction 
Department of Environment, Health, and 
Natural Resources 
Employment Security Commission 
Hearing Aid Dealers and Fitters Board 
Human Relations Committee 
Independent Agencies 
Department of Insurance 
Licensing Board for Contractors 
Milk Commission 

Board of Nursing Home Administrators 
Office of Administrative Hearings 
Office of State Personnel 
Board of Plumbing and Heating 
Contractors 

Board of Podiatry Examiners 
Department of Secretary of State 
Board of Examiners of Speech and Language 
Pathologists and Audiologists 
Wildlife Resources Commission 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Anne R. Gwaltney, Milton H. Askew, Jr. 

and Anna L. Askew 

v. 

EHR and Pamlico County Health Department 


89 DHR 0699 


Reilly 


07/17/92 


Eleanor R. Edgerton-Taylor 

v. 

Cumberland County Department of Social Services 


89 OSP 1141 


Morrison 


08/18/92 


Annette Carlton 

v. 

Cleveland County Department of Social Services 


90 OSP 0024 


Chess 


08/14/92 


Janice Parker Haughton 

v. 

Halifax County Mental Health, Mental Retardation. 

Substance Abuse Program 


90 OSP 0221 


West 


08/18/92 



1226 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


CSX Transportation, Inc. 

v. 

Department of Environment, Health. & Natural Resources 


90 EHR 0628 


Reilly 


07/17/92 


Bruce Keeter 

v. 

Beaufort County Health Department 


90 EHR 0666 


Morgan 


07/28/92 


Christine Hill 

v. 

Crime Victims Compensation Commission 


90 CPS 0876 


Morgan 


08/24/92 


JHY Concord, Inc. 

v. 
Department of Labor 


90 DOL 1421 


Morgan 


07/28/92 


Lick Fork Hills, Inc., Marion Bagwell, President 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 0023 


Morgan 


07/28/92 


Albert J. Johnson 

v. 

N.C. Victims Compensation Commission 


91 CPS 0038 


Morgan 


07/28/92 


William B. Holden 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 0176 


Morgan 


08/18/92 


Brenda P. Price 

v. 

North Carolina Central University 


91 OSP0219 


Morrison 


08/21/92 


Century Care of Laurinburg, Inc. 

v. 

DHR, Division of Facility Services, Licensure Section 


91 DHR 0257 


West 


06/30/92 


Richard L. Gainey 

v. 

Department of Justice 


91 OSP0341 


Becton 


08/10/92 


Wade Charles Brown, Jr. 

v. 

N.C. Crime Victims Compensation Commission 


91 CPS 0345 


Chess 


07/08/92 


Jackie Bruce Edwards 

v. 

DHR, Western Carolina Center 


91 OSP 0354 


West 


08/20/92 


Robert C. Howell 

v. 

Department of Correction 


91 OSP 0407 


Morgan 


08/26/92 


Charles E. Roe 

v. 

Department of Environment, Health, & Natural Resources 


91 OSP 0520 


Nesnow 


07/23/92 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1227 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Jerry J. Parker 

v. 

Department of Correction 


91 OSP 0546 


Morgan 


08/26/92 


Lisa M. Reichstein 

v. 

Office of Student Financial Aid, East Carolina University 


91 OSP 0662 


Nesnow 


06/24/92 


DHR, Division of Facility Svcs, Child Day Care Section 

v. 
Mary Goodwin, Jean Dodd, D/B/A Capital City Day Care 

Center 


91 DHR 0720 


Morgan 


07/30/92 


Kenneth Helms 

v. 

Department of Human Resources 


91 OSP 0729 


Chess 


07/15/92 


Alcoholic Beverage Control Commission 

v. 

Daniels Investments, Inc.. t/a Leather & Lace - East 

4205 Monroe Road. Charlotte, N.C. 28205 


91 ABC 0799 


Mann 


07/14/92 


Zelma Babson 

v. 

Brunswick County Health Department 


91 OSP 0804 


Gray 


08/14/92 


ACT-UP Triangle (AIDS Coalition to Unleash Power 

Triangle, Steven Harris, and John Doe 

v. 

Commission for Health Services of the State of N.C, Ron 

Levine, as Assistant Secretary of Health and State Health 

Director for EHR of the State of N.C. William Cobey. as 

Secretary of EHR of the State of N.C, Dr. Rebecca 

Meriwether, as Chief, Communicable Disease Control 

Section of the N.C. EHR. Wayne Bobbin, Jr., as Chief of 

the HIV/STD Control Branch of the N.C. EHR 


91 EHR 0818 


Becton 


07/08/92 


Jane C. O'Malley, Melvin L. Cartwright 
v. 
EHR and District Health Department Pasquotank- 
Perquimans-Camden-Chowan 


91 EHR 0838 


Becton 


07/02/92 


Thomas E. Vass 

v. 

James E. Long, Department of Insurance 


91 INS 0876 


Morrison 


08/14/92 


Grotgen Nursing Home, Inc., Britthaven. Inc. 

v. 

Certificate of Need Section, Div of Facility Svcs, DHR 


91 DHR 0964 
91 DHR 0966 


Nesnow 


07/06/92 


Ramona S. Smith. R.N. 
v. 

N.C. Teachers'/St Emps' Comp Major Medical Plan 


91 DST 0984 


Chess 


06/18/92 



122H 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Charles H. Yates, Power of Attorney for Ruth Yates 

v. 
N.C. Teachers'/St Emps' Comp Major Medical Plan 


91 INS 1008 


Reilly 


08/21/92 


Walter McGlone 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1030 


Morrison 


07/13/92 


William Oscar Smith 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1042 


Gray 


07/24/92 


William Watson 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1047 


Becton 


07/08/92 


Robert D. Daniels Jr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1048 


Morrison 


08/27/92 


Marie McNeill-Pridgen 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 1059 


Nesnow 


07/17/92 


Catawba Memorial Hospital 

v. 

DHR, Div of Facility Svcs, Certificate of Need Section 

and 
Frye Regional Medical Ctr, Inc. and Amireit (Frye), Inc. 

and 

Thorns Rehabilitation Hospital Health Services Corp. 

and 

Frye Regional Medical Ctr, Inc. and Amireit (Frye), Inc. 

v. 
DHR, Div of Facility Svcs, Certificate of Need Section 

and 

Thorns Rehabilitation Hospital Health Services Corp. 

and 

Catawba Memorial Hospital 


91 DHR 1061 
91 DHR 1087 


Reilly 


07/13/92 


Edward R. Peele 

v. 

Sheriffs' Education & Training Stds. Commission 


91 DOJ 1092 


Morrison 


08/18/92 


William Torres 

v. 

Dept of Justice, Lacy H. Thornburg, Attorney General 


91 DOJ 1098 


Morrison 


08/07/92 


Wade A. Burgess 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1114 


Gray 


07/01/92 


Harry L. King 

v. 

Department of Transportation 


91 OSP 1162 


Morgan 


07/13/92 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1229 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Gilbert Lockhart 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1178 


Morrison 


07/30/92 


Isaac H. Galloway 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1190 


Reilly 


06/30/92 


Russell A. Barclift 

v. 

DHR, Division of Social Services. CSE 


91 CSE 1207 

92 CSE 0275 


Reilly 


06/30/92 


Herman Edward Main II 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1225 


Nesnow 


07/07/92 


Albert Louis Stoner III 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1244 


Gray 


07/01/92 


James E. Greene 

v. 

DHR, Division of Social Services. CSE 


91 CSE 1245 


Nesnow 


07/14/92 


Joseph W. Harris 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1247 


Morgan 


07/28/92 


Rodney Powell 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1257 


Morgan 


07/29/92 


Miles G. Griffin Jr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1270 


Gray 


08/27/92 


Floyd L. Rountree 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1275 


Morgan 


07/22/92 


Ruth Smith Hensley Shondales 

v. 

ABC Commission 


91 ABC 1280 


Chess 


08/05/92 


City-Wide Asphalt Paving, Inc. 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 1360 


Chess 


07/01/92 


Alcoholic Beverage Control Commission 

v. 

Tre Three, Inc., T/A Crackers, 

Airport Rd.. Rockingham, NC 28379 


91 ABC 1372 


Chess 


07/07/92 


Alcoholic Beverage Control Commission 

v. 

Rode Enterprises. Inc., T/A Jordan Dam Mini Mart 


91 ABC 1388 


Gray 


07/30/92 



1230 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Donald R. Allison 

v. 

DHR, Caswell Center 


91 OSP 1427 


Reilly 


06/30/92 


Rudolph Tripp 

v. 

Department of Correction 


92 OSP 0024 


Gray 


08/27/92 


Lavern Fesperman 

v. 

Mecklenburg County 


92 OSP 0030 


Chess 


07/17/92 


Carrolton of Williamston, Inc. 

v. 

DHR, Division of Facility Services, Licensure Section 


92 DHR 0071 


Becton 


08/19/92 


Fred Jennings Moody Jr. 

v. 

Sheriffs' Education & Training Stds. Commission 


92 DOJ 0084 


Chess 


07/17/92 


Ronnie Lamont Donaldson 

v. 

Sheriffs' Education & Training Standards Commission 


92 DOJ 0092 


Reilly 


07/27/92 


Marvin Helton, Jean Helton 

v. 

DHR, Division of Facility Services 


92 DHR 0102 


Chess 


08/14/92 


Leo Scott Wilson 

v. 

Department of Environment, Health, & Natural Resources 


92 EHR0112 


Reilly 


08/26/92 


Peggy N. Barber 

v. 

The University of North Carolina at Chapel Hill 


92 OSP 0120 


Reilly 


07/13/92 


Alcoholic Beverage Control Commission 

v. 

John Wade Lewis, t/a Tasty Grill 


92 ABC 0145 


Nesnow 


07/15/92 


Licensing Board for General Contractors 

v. 

Wright's Construction, Inc. (Lie. No. 23065) 


92 LBC 0172 


Gray 


07/31/92 


Richard L. Banks 

v. 

Pasquotank-Perquimans-Camden-Chowan District Health 

Department (PPCC) & Department of Environment, 

Health, & Natural Resources 


92 EHR 0175 


West 


08/25/92 


Ray Bryant 

v. 

Department of Labor, OSHA 


92 DOL 0187 


Nesnow 


08/07/92 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1231 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Herbert Hines Jr., H & H 

v. 

Alcoholic Beverage Control Commission 


92 ABC 0189 


Bee ton 


07/22/92 


Frances B. Billingsley 

v. 

Bd. of Trustees/Teachers & St Employees Retirement Sys 


92 DST 0205 


Morgan 


08/18/92 


Lawrence Neal Murrill T/A Knox, 507 1st St SW, 

Hickory, NC 28602 

v. 

Alcoholic Beverage Control Commission 


92 ABC 0220 


Chess 


08/03/92 


Town of Denton 
v. 

Department of Environment. Health, & Natural Resources 


92 EHR 0241 


Reilly 


07/30/92 


Alcoholic Beverage Control Commission 

v. 

Byrum's of Park Road, Inc., T/A Byrum's Restaurant 


92 ABC 0252 


Gray 


07/30/92 


Alcoholic Beverage Control Commission 

v. 
Leo's Delicatessen #2, Inc., T/A Leo's #2 


92 ABC 0255 


Gray 


07/30/92 


North Topsail Water & Sewer, Inc. 

v. 

Department of Environment. Health. & Natural Resources 


92 EHR 0266 


Morrison 


08/12/92 


Jonathan L. Fann 

v. 

U.N.C. Physical Plant, Herb Paul, Louis Herndon, Dean 

Justice, Bruce Jones 


92 OSP 0363 


Becton 


08/19/92 


Douglas A. Bordeaux 

v. 

Department of Correction 


92 OSP 0378 


Chess 


07/10/92 


Clifton R. Johnson 

v. 

O' Berry Center, Department of Human Resources 


92 OSP 0381 


West 


07/08/92 


Southeastern Machine & Tool Company, Inc. 

v. 

Department of Environment. Health, & Natural Resources 


92 EHR 0386 


Becton 


07/20/92 


Louvenia Clark 

v. 

Edgecombe County Department of Social Services 


92 OSP 0402 


Reilly 


08/21/92 


Raleigh F. LaRoche 

v. 

Child & Family Services of Wake County 


92 OSP 0409 


Becton 


08/24/92 



1232 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Paul Reeves, Youth University Child Care 

v. 

Child Day Care Section, Division of Facility Svcs 


92 DHR 0424 


West 


08/21/92 


Mr. & Mrs. James C. Stanton 

v. 

Charlotte-Mecklenburg School System 


92 EDC 0430 


Nesnow 


08/04/92 


Northview Mobile Home Park 

v. 

Department of Environment, Health, & Natural Resources 


92 EHR 0507 


Reilly 


07/13/92 


Yolanda Lynn Bethea 

v. 

DHR, Division of Social Services, CSE 


92 DCS 0513 


Becton 


08/14/92 


Alice Hunt Davis 

v. 

Department of Human Resources 


92 OSP 0526 


West 


07/16/92 


Jimmy F. Bailey Sr. 

v. 

Department of State Treasurer, Retirement Systems Div 


92 DST 0536 


Morgan 


08/18/92 


Bramar, Inc., t/a Spike's 

v. 

Alcoholic Beverage Control Commission 


92 ABC 0554 


Mann 


08/13/92 


Ralph J. Ogburn 

v. 

Private Protective Services Board 


92 DOJ 0571 


Nesnow 


08/07/92 


Gilbert Todd Sr. 

v. 

Public Water Supply Section 


92 EHR 0586 


Morrison 


08/06/92 


Candance Y. Johnson 

v. 

Division of Motor Vehicles 


92 DOT 0589 


Becton 


08/24/92 


John W. Surles 

v. 
N.C. Crime Victims Compensation Commission 


92 CPS 0595 


Reilly 


07/13/92 


Pamela Jean Gass 

v. 

DHR, Division of Social Services, CSE 


92 DCS 0623 


Morrison 


08/14/92 


J.W. Reed 

v. 

Department of Correction 


92 OSP 0638 


Morrison 


08/11/92 


Carson Davis 

v. 

Department of Correction 


92 OSP 0650 


Reilly 


08/10/92 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1233 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Stauffer Information Systems 

v. 

Department of Community Colleges and the N.C. 

Department of Administration 

and 

The University of Southern California 


92 DOA 0666 


West 


07/08/92 


Nancy J. Tice 

v. 

Administrative Off of the Courts. Guardian Ad Litem Svcs 


92 OSP 0674 


Morrison 


08/11/92 


L. Stan Bailey 

v. 

Chancellor Mo ran and UNC-Greensboro 


92 OSP 0679 


West 


07/10/92 


Arnold McCloud T/A Club Castle 

v. 

Alcoholic Beverage Control Commission 


92 ABC 0681 


Morrison 


07/25/92 


Joyce Faircloth. T/A Showcase Lounge 

v. 
Alcoholic Beverage Control Commission 


92 ABC 0713 


Morrison 


07/25/92 


Larry Bruce High 

v. 

Alarms Systems Licensing Board 


92 DOJ 0755 
92 DOJ 0785 


Nesnow 


08/25/92 



1234 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 
COUNTY OF ALEXANDER 91 OSP 0407 



ROBERT C. HOWELL 
Petitioner, 



N.C. DEPARTMENT OF CORRECTION 
Respondent. 



FINAL DECISION 



The Petitioner was dismissed from his employment with the Respondent, and was notified in a letter 
dated April 2, 1991 that the head of the North Carolina Department of Correction had upheld this dismissal. 
The Petitioner was informed in this letter that in the event that he wished to appeal the decision of the head 
of the Department, he "must file a petition for a contested case hearing pursuant to G.S. 150B-23 with the 
Office of Administrative Hearings, P. O. Drawer 27447, 424 North Blount Street, Raleigh, NC 27611-7447 
within thirty (30) calendar days of receipt of this letter." 

The record in this contested case indicates that the Petitioner's attorney of record received the letter 
of the Respondent's final agency action on April 5, 1991 by certified mail. On May 8, 1991, the Petitioner's 
attorney filed a petition for a contested case on behalf of the Petitioner. On October 10, 1991 the Respondent 
filed its Motion to dismiss on the basis that the Office of Administrative Hearings lacks subject matter 
jurisdiction here because the Petitioner's petition was filed after the required deadline. The Petitioner filed 
the Petitioner's Response to Respondent's Motion to Dismiss, coupled with a supporting affidavit of his 
attorney, on October 18, 1991. In the response, the Petitioner contends that his petition was filed in a timely 
manner because it was filed within thirty days of the date that the Petitioner himself received notice of the 
decision of the Respondent's head or, in the alternative, because the addition of three days to the 30-day 
appeal period due to service of the decision notice by mail extended the Petitioner's deadline date by which 
to file his petition. 

CONCLUSIONS OF LAW 

North Carolina General Statutes Section 126-35 establishes that if a permanent State employee is not 
satisfied with the final decision of the head of a department, he may appeal to the State Personnel Commission 
by filing such appeal not later than 30 days after receipt of notice of the department head's decision. 
Similarly, N.C. G.S. §126-38 states that any employee appealing any decision or action shall file a petition 
for a contested case with the Office of Administrative Hearings as provided in G.S. 150B-23(a) no later than 
30 days after receipt of notice of the decision or action which triggers the right of appeal. The right to appeal 
to an administrative agency is granted by statute, and compliance with the statutory provisions is necessary 
to sustain the appeal. Lewis v. North Carolina Department of Human Resources, 92 N.C. App. 737, 375 
S.E.2d 712 (1989). Where a petitioner bears the responsibility of filing his petition with the Office of 
Administrative Hearings on or before the requisite date but fails to comply with the mandatory requirement 
for timely filing of his petition for a contested case hearing, the decision of an administrative law judge to 



7:12 NORTH CAROLINA REGISTER September 15, 1992 1235 



CONTESTED CASE DECISIONS 



dismiss the petition is proper. Gummels v. North Carolina Department of Human Resources, 98 N.C. App. 
675, 392 S.E.2d 113 (1990). 

In the present case, the Petitioner's attorney of record received notice of the decision of the 
Respondent's head official on April 5. 1991. This constituted the decision which triggered the Petitioner's 
right of appeal mentioned in N.C.G.S. §126-38 and began the 30-day time period within which the Petitioner 
could timely file the petition initiating his appeal with the Office of Administrative Hearings. The 30-day 
period expired on May 6, 1991 . However, the Petitioner did not file his petition until May 8, 1991— two days 
after the expiration of the appeal period. The Petitioner's appeal is therefore clearly untimely under N.C.G.S. 
§§126-35 and 126-38. Based upon the principles of Lewis \\ North Carolina Department of Human 
Resources, supra and Gummels v^ North Carolina Department of Human Resources, supra, the Petitioner's 
failure to comply with the Mandatory requirement for timely filing of his petition for a contested case hearing 
in order to exercise his statutory right of appeal warrants the dismissal of his petition. 

Both of the Petitioner's premises that his petition was filed in a timely manner are groundless. 
Firstly, the Petitioner argues that he filed his petition within the 30-day statutory period "after receipt of 
notice" of the decision at issue because he himself did not receive notice of the department head's decision 
until May 1, 1991 when the Petitioner's attorney of record informed the Petitioner in writing about her April 
5. 1991 receipt of the notice. The May 8, 1991 filing date of the petition is within thirty days of the May 1, 
1991 date which the Petitioner contends is his actual "receipt of notice" date as contemplated by N.C.G.S. 
§§126-35 and 126-38. It is further contended that the Petitioner's attorney was unaware that the Petitioner 
had not been directly notified by the Respondent of the department's final agency action and that the 
Respondent erred in sending the notice of the department head's decision merely to the Petitioner's attorney 
and not to the Petitioner himself. 

There is a presumption in favor of an attorney's authority to act for the client he professes to 
represent. This presumption arises not only with regard to technical or procedural aspects of a case; it extends 
as well to the arena of the client's substantive rights. Greenhill v\ Crabtree , 45 N.C. App. 49, 262 S.E.2d 
315 (1980). affd 301 N.C. 520. 271 S.E.2d 908 (1980). In the instant case, the presumption that the 
Petitioner's attorney of record procedurally acted on behalf of the Petitioner with regard to her receipt of the 
notice of the department head's decision is intact and unrebutted. It becomes the burden of the client to rebut 
this presumption and to prove lack of authority to the satisfaction of the court. Greenhill \\ Crabtree. supra . 
In determining the Petitioner's failure to sufficiently rebut the presumption that his attorney of record acted 
on his behalf in her receipt of the notice of the decision by the Respondent's head, it is noteworthy that (1) 
the record discloses that the Petitioner's attorney has represented him throughout his employee grievance 
appeal process and (2) a copy of the notice of decision received by the Petitioner's attorney on April 15, 1991 
clearly was not sent to the Petitioner himself as noted by the omission of an appropriate notation at the bottom 
of the notice. This conclusion is consistent with the North Carolina Court of Appeals decision in Bennett y^ 
Bennett , 71 N.C. App. 424, 322 S.E.2d 439 (1984). in which the appellate court held that service of a notice 
on a party's attorney is sufficient where there is nothing in the record to show that the attorney has been 
relieved from representation before the notice is served on him. 

The Petitioner's alternative assertion that his petition was filed in a timely manner because three days 
were required to be added to his 30-day appeal period under N.C.G.S. §1A-1. Rule 6(e), due to the service 
of the department head's notice of decision by mail, is likewise unpersuasive. The addition of three days 
pursuant to this statutory provision would extend the Petitioner's appeal period to May 9, 1991 . thus rendering 
as timelv his May 8, 1991 filing of the petition. However, the undersigned administrative law judge is obliged 
to heed the plain meaning of the statutory provisions in N.C.G.S. §§126-35 and 126-38 which uniformly 
establish that the petition of appeal shall be filed no later than 30 davs after receipt of notice of the decision. 
The Petitioner's suggested construction of these statutes, influenced by the Petitioner's desired application of 
N.C.G.S. §1 A- 1 . Rule 6(e). would afford him a total of 33 days after receipt of notice of the decision at issue 
to file a petition for a contested case. Such an interpretation contravenes the clear language of N.C.G.S. 



1236 7:12 NORTH CAROLINA REGISTER September 15, 1992 



CONTESTED CASE DECISIONS 



§§126-35 and 126-38 and is therefore impermissible. 

FINAL DECISION 

This contested case is DISMISSED for lack of jurisdiction under N.C.G.S. §150B-36(c). 

NOTICE 

In order to appeal a final decision, the person seeking review must file a petition with the Superior 
Court of Wake County or with the superior court of the county where the person resides. The petition for 
judicial review must be filed within thirty days after the person is served with a copy of the final decision. 
N.C.G.S. §150B-46 describes the contents of the petition and requires service of the petition on all parties. 



This the 26th day of August, 1992. 



Michael Rivers Morgan 
Administrative Law Judge 



7:12 NORTH CAROLINA REGISTER September 15, 1992 1237 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF CUMBERLAND 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 
91 INS 1008 



CHARLES H. YATES, 

Power of Attorney for Ruth Yates. 
Petitioner, 



) 
) 

) 
) 

y. ) 

) 

N.C. TEACHERS' AND STATE EMPLOYEES' ) 

COMPREHENSIVE MAJOR MEDICAL PLAN, ) 

Respondent. ) 



RECOMMENDED DECISION 



This contested case was heard on July 23, 1992 in Fayetteville, North Carolina upon appeal from 
Respondent's denial of private duty nursing benefits requested by the Petitioner for the period of December 
1, 1990 through August 14. 1991. 

Petitioner was represented at the hearing by Mr. Luke Largess of the firm of Ferguson, Stein. Watt, 
Wallas. Adkins and Gresham. P. A. Respondent was represented by Ms. Evelyn Terry, Associate Attorney 
General. 

WITNESSES 

The following testified for Petitioner: 

Dr. Tinsley Rucker - Petitioner's physician. 

Charles Yates - Petitioner's Son and Power of Attorney. 



Patricia Williams 



Director of Nursing, Village Green Care Center. Petitioner's present 
residence. 



The following testified for Respondent: 

Dr. Alan McBride Chief Medical Consultant. Blue Cross & Blue Shield 



Harold Wright 



Deputy Administrator. N.C. Teachers' and State Employees' 
Comprehensive Major Medical Plan 

OFFICIAL NOTICE 



Official Notice is taken of: 

G.S. $ 135-40. 6(8)(b) 

G.S. § 135-40. 6(8)(c) 

North Carolina Teachers" and State Employees' Comprehensive Major Medical Plan Policy on Private 

Duty Nursing. Number AH0715:0O (December 1989) 

FINDINGS OF FACT 

1 . Petitioner is a retired North Carolina public school teacher with 33 years of service who is 

eligible for. and has received benefits under, the Respondent's health insurance plan. 



1238 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



CONTESTED CASE DECISIONS 



2. In October 1989, Petitioner was hospitalized and treated for a stroke. At that time, among 
other conditions, she could not communicate verbally nor feed herself. She had to be fed through a 
nasogastric feeding tube. 

3. Upon her discharge from the hospital on October 18, 1989 and until January 18, 1990, the 
Respondent provided Petitioner with benefits covering private duty nursing, 24 hours per day, seven days per 
week on the basis of her medical condition. 

4. From January 19, 1990 until November 30, 1990, the Respondent provided private duty 
nursing benefits for Petitioner for 16 hours per day, seven days per week. Petitioner's family paid privately 
for a nursing assistant the remaining eight hours per day. 

5. On December 1, 1990, Respondent reduced Petitioner's private duty nursing benefit to eight 
hours per day, seven days per week. 

6. On December 1, 1990, Petitioner's condition had not changed significantly since October 
1989, except that she was now fed through a stomach gastric tube instead of the nasogastric tube. Based on 
the testimony at the hearing. Petitioner's condition since her hospitalization was one of steady, gradual decline. 

7. Petitioner appealed the reduction in benefits to eight hours per day through Respondent's 
appeal procedure. From December 1, 1990 through August 14, 1991, pending the appeal of the reduction 
in benefits. Petitioner's family paid privately for nursing care for the 16 hours per day not covered by 
Respondent. The parties stipulated that Petitioner submitted regular requests for 16 hour per day skilled 
nursing benefits during the appeal period. 



On February 26, 1991, Respondent denied Petitioner's first-level appeal of the reduction in 



her benefits. 



9. In making that determination. Respondent relied upon the recommendation of its Medical 
Consultant, Dr. Alan McBride, M.D. Dr. McBride based his recommendation on a review of the Petitioner's 
nursing notes for the period of December 1, 1990 through February 1, 1991. Dr. McBride never personally 
examined the Petitioner. 

10. From his review of those nursing notes, Dr. McBride believed that Petitioner did not need 
skilled nursing care, except for a monthly visit. He determined that a home health aide and the family could 
provide Petitioner with adequate care. Dr. McBride noted that the family should have been trained by that 
time to do Petitioner's feedings through the stomach gastric tube. 

11. On March 15, 1991, Respondent further reduced Petitioner's benefits to four hours of a home 
health aide, seven days per week, and a monthly skilled nursing visit. Petitioner continued to request 16 hour 
per day coverage. 

12. Petitioner filed a second-level appeal on March 29, 1991. 

13. The second-level review panel denied Petitioner's appeal on April 29, 1991. 

14. Petitioner filed for a third-level appeal to the Board of Directors of the Respondent agency. 
The Board considered and denied the appeal at its meeting of July 30, 1991. 

15. On August 14, 1991, upon learning of the decision of the Board and unable to continue to 
pay privately for home nursing care. Petitioner's family moved her into a skilled nursing facility at the Village 
Green Care Center in Fayetteville. 

16. Petitioner was admitted to Village Green Care Center as a skilled care patient. 



7:12 NORTH CAROLINA REGISTER September 15, 1992 U39 



CONTESTED CASE DECISIONS 



17. Dr. Tinsley Rucker was Petitioner's primary' care physician. Based on Dr. Rucker's 
testimony. Petitioner had the following medical complications during the period that is on appeal: Petitioner 

a. suffered from profound dementia; 

b. could not swallow and had no gag reflex, an unusual medical condition that presented 
a high risk of nasopharyngeal aspiration and pneumonia; 

c. had a history of chronic bacterial infections, particularly urinary tract infections that 
presented a risk of whole body infection (sepsis) if not detected early; 

d. had problems with contracture of her extremities: 

e. had problems with conjunctivitis and skin lesions, including decubiti ulcers; 

f. was not able to express herself or otherwise communicate. 

18. Because she could not communicate in any manner about any discomfort associated with any 
of her several disorders, including urinary tract infections or aspiration into the lungs. Petitioner needed daily 
skilled examination that a home health aide could not provide. Any undetected bacterial infection presented 
a very high risk of whole body infection or sepsis, while undetected nasopharyngeal aspiration presented a 
high risk of pneumonia; either condition was very dangerous for Petitioner. 

19. Based on her medical condition during the relevant period, the Petitioner needed some amount 
of skilled nursing care every day. From the evidence presented at the hearing, the Administrative Law Judge 
finds that eight hours of nursing care per day was a reasonable and necessary amount of care, given 
Petitioner's medical condition. 

CONCLUSIONS OF LAW 

1 . The controlling legal principle in this case is the Respondent's medical policy on private duty 
nursing which interprets the provisions of G.S. 135-40.6(8) and other statutory guidelines that apply to 
someone in Petitioner's circumstance. 

2. Section 7. a of that medical policy on private duty nursing states, in pertinent part, that the: 

"need for. and the length of. service usually depends upon the condition of 
the patient and the level of care required rather than the nature of the 
disease, illness or condition." 

Under this language, the condition need not be specifically listed in the medical policy for an individual to 
qualify for private duty nursing benefits. 

3. Based on the testimony of all the witnesses, this Court concludes as a matter of law that 
Petitioner's medical condition required continuing skilled nursing care and qualified for benefits therefore 
under Section 7. a of Respondent's policy on private duty nursing. 

4. Based on the evidence presented at the hearing. Petitioner also presented the medical 
conditions specifically listed under Section 7.c.v. of Respondent's policy as an example of a condition 
requiring skilled care — nasopharyngeal aspiration. 

5. Respondent's Medical Consultant. Dr. McBride. made a reasonable recommendation to 
Petitioner's health care needs based on the information he had reviewed. However, he did not have as 
complete an understanding of her medical condition as did her physician. Dr. Rucker. 

6. Upon Dr. Rucker's convincing testimony, this Administrative Law Judge concludes as a 
matter of law that Petitioner had met the requirements of eligibility presented under Section 7. a. and 7.C.V. 
of Respondent's policy on private duty nursing. Petitioner needed more skilled care than that provided by 
a home health aide during the period on appeal. 



1240 7:12 NORTH CAROLINA REGISTER September 15, 1992 



CONTESTED CASE DECISIONS 



RECOMMENDED DECISION 

WHEREFORE, based upon the preceding findings of fact and conclusions of law, it is the 
recommended decision of this Administrative Law Judge that Petitioner was eligible for and should now 
receive private duty nursing benefits for 8 hours per day, seven days per week, for the period on appeal, 
December 1, 1990 through August 14, 1991. 



This 21st day of August, 1992. 



Robert R. Reilly 
Admininstrative Law Judge 



7:12 NORTH CAROLINA REGISTER September 15, 1992 1241 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF ALAMANCE 



IN THE OFFICE OF 
ADMINISTRATTVE HEARINGS 
92 EHR0112 



LEO SCOTT WILSON, 

Petitioner 



DEPARTMENT OF ENVIRONMENT, 
HEALTH AND NATURAL RESOURCES. 
Respondent 



RECOMMENDED DECISION 



This matter came on for hearing before the undersigned administrative law judge on July 6, 1992, 
in Burlington. 

Mr. C. Craig White represented the Petitioner. Ms. Elizabeth Rouse Mosley represented the 
Respondent. The Petitioner presented two witnesses and introduced eleven exhibits. The Respondent 
presented two witnesses and introduced seven exhibits. Proposed Findings of Fact were filed on August 6 
and 20, 1992. 

ISSUE 

Did the Respondent properly assess a civil penalty of five thousand dollars ($5,000.00) against the 
Petitioner for violation of the Mining Act of 1971 as alleged in the October 18, 1991 assessment? 

FINDINGS OF FACT 

1. The Petitioner owns two (2) parcels of land, one ofwhich consists of approximately an eight (8) acre 

tract on the northeast side of old Glencoe Road and another of which consists of a thirty-three (33) 
acre tract on the southwest side of old Glencoe Road. This real estate is subject to the zoning laws 
of the City of Burlington, Alamance County, North Carolina. It is zoned R-9 which allows the land 
to be used for agricultural purposes but not for mining purposes. 



Prior to January 17, 1989, the Petitioner contemplated cultivating a Christmas tree farm on both of 
the tracts of land adjoining old Glencoe Road. The Petitioner contacted the City of Burlington zoning 
officials and determined that the tracts of land could be used for the purpose of planting and 
cultivating Christmas trees. 

On January 17. 1989, a Burlington zoning official, Mark D. Reich, contacted the Petitioner by letter 
dated January 17. 1989. The letter stated that both the City of Burlington soil erosion and 
sedimentation control ordinance and the North Carolina Sedimentation Pollution Control Act of 1973 
would allow the clearing of the tracts of land for the purpose of planting and cultivating Christmas 
trees. 

Thereafter, the Petitioner constructed a pond on the northeast tract for the purpose of providing a 
source of water for the cultivation of the Christmas trees. He planted between three and four thousand 
Christmas trees on the tracts of land. 

The Petitioner had contacted Lon Wiseman, a Christmas tree farmer, prior to the beginning of 
Petitioner's Christmas tree farming to obtain advice. Mr. Wiseman inspected the Petitioner's property. 
He observed approximately twenty-five hundred (2.500) Christmas trees on the tracts of land. Mr. 
Wiseman stated that the Petitioner was engaged in Christmas tree farming and that he was doing so 



1242 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



CONTESTED CASE DECISIONS 



in an acceptable manner. 

6. On or about February 1 , 1990, the Petitioner was informed by the City of Burlington zoning officials 
that the tract where earth had been moved for the purpose of creating the pond might fall under the 
provisions of the Mining Act of 1971. More than one acre of land had been disturbed. The Petitioner 
responded that more than one acre of land had been moved for the purpose of constructing a pond 
as a source of water for the cultivation of his Christmas trees. The Petitioner, upon being informed 
that he might be in violation of the Mining Act of 1971, immediately ceased any further earth removal 
or disturbance in accordance with the direction of the City of Burlington zoning officials. 

7. On or about September 10, 1990, the Petitioner was informed that the Respondent was assuming 
jurisdiction of the Petitioner's alleged violations under the Mining Act of 1971. 

8. Some of the topsoil, which had been excavated, had been removed from the Petitioner's land by a 
contractor. No remuneration was received by the Petitioner. 

9. The Respondent conducted numerous inspections of the Petitioner's property and requested that the 
Petitioner submit a reclamation plan for the property pursuant to the Mining Act of 1971. The 
Petitioner attempted to follow some of the Respondent's suggestions. He sowed some wheat and grass 
on the property. 

10. The Petitioner allowed the Respondent to come upon his property for purposes of inspection. 

1 1 . The Petitioner received a civil penalty assessment for violations of the Mining Act of 1971 by letter 
dated October 25, 1991, from the Respondent. The letter assessed a civil penalty in the amount of 
five thousand dollars ($5,000.00) for allegedly operating a mine without a valid permit on or before 
August 28, 1990. The letter stated in part: "In determining the amount of these penalties, I have 
considered the degree and extent of harm caused by the violation, the cost of rectifying the damage, 
the amount of money saved by noncompliance, whether the violation was committed willfully and the 
prior record of the violator in complying or failing to comply with the Mining Act as required..." 

12. Douglas Miller testified for the Respondent that he prepared a form called "Guidelines for Assessing 
Civil Penalties for Violations of the Mining Act for Mining Without a Permit" on January 17, 1991 
and forwarded it to his superior for review. Paragraph C of the document substantiates that the 
Petitioner never had any prior Mining Act violations. Paragraph D states that the Petitioner did not 
have knowledge of the Mining Act before he commenced the alleged mining. Paragraph E states that 
all alleged mining ceased immediately after the receipt of the notice of violation. Paragraph B, 
number 7, indicates that the degree of on-site damage was "slight". Douglas Miller testified that the 
actions of the Petitioner were not willful. 

13. Douglas Miller testified that the amount of the civil penalty assessment was not set by him and that 
he could not testify as to how the maximum penalty had been set in this case. There was no evidence 
as to how the maximum penalty had been set. 

CONCLUSIONS OF LAW 

1. The Mining Act of 1971, GS 74-49(7), states as follows: "(Mining) shall not include excavation or 
grading when conducted solely in aid of on-site farming or of on-site construction for purposes other 
than mining". The Petitioner's construction by excavation and grading of a pond as a water source 
for his Christmas trees was conducted solely in aid of on-site farming and, therefore, was not subject 
to the Mining Act of 1971. 

2. The Petitioner did not violate the Mining Act of 1971. 

3. Alternatively, the decision to impose the maximum fine of five thousand dollars ($5,000.00) on the 



7:12 NORTH CAROLINA REGISTER September 15, 1992 1243 



CONTESTED CASE DECISIONS 



Petitioner was arbitrary and capricious in that the guidelines used by the Respondent in assessing the 
penalty assessment and the evidence presented in this contested case do not support the maximum 
penalty. Furthermore, no evidence was provided by the Respondent at the hearing of this matter as 
to how the maximum penalty assessment was determined. See Recommended Decision in Town of 
Denton \\ Department , dated July 30, 1992. A copy is attached. 

RECOMMENDED DECISION 

It is recommended that the civil penalty assessment of five thousand dollars ($5,000.00) against the 
Petitioner be rescinded. 

ORDER 

It is hereby ORDERED that the agency serve a copy of the Final Decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General 
Statutes 150B-36(b). 

NOTICE 

The final decision in this contested case shall be made by the Department of Environment, Health and 
Natural Resources. Each party has the right to file exceptions to the recommended decision and to present 
written arguments on the decision to this agency. 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

This the 26th day of August. 1992. 



Robert Roosevelt Reilly, Jr. 
Administrative Law Judge 



1244 7:12 NORTH CAROLINA REGISTER September 15, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 
92 OSP 0024 



RUDOLPH TRIPP 

Petitioner, 

\. 

NORTH CAROLINA DEPARTMENT OF 
CORRECTION, 

Respondent. 



RECOMMENDED DECISION 



This matter was heard before Beecher R. Gray, administrative law judge, on April 14-15, 1992 in 
Raleigh, North Carolina. At the conclusion of the evidence, the parties requested and received leave to file 
proposed findings of fact and written arguments thirty days after receipt of transcripts. Both parties filed 
timely proposals and arguments, which have been considered. 

APPEARANCES 

Petitioner: Rudolph Tripp, appearing pro se 

Respondent: Sylvia Thibaut, Esq. 

ISSUE 



1991 



Whether Respondent had just cause for the termination of Petitioner Rudolph Tripp on October 31 



FINDINGS OF FACT 

The parties received notices of hearing by certified mail more than fifteen (15) days prior to the 
hearing. 

Petitioner began employment with the North Carolina Department of Correction in September of 
1977. At the time of his dismissal on October 31, 1991, Petitioner held the position of Correctional 
Training Coordinator I in Respondent's Office of Staff Development and Training (OSDT). 

Petitioner completed a doctorate in education at North Carolina State University in February, 1991, 
graduating in May, 1991. 

On October 26, 1990, Petitioner was given an oral warning for using the State owned computer in 
his office to write a personal letter to the Federal Internal Revenue Service. 

Petitioner operated computers both at OSDT and at home. Petitioner has Wordperfect 5.1 word 
processing in his home. At the time of Petitioner's termination, OSDT used a word processing 
program identified as SAMNA, in which Petitioner was trained and literate. Petitioner also was 
literate in the use of ASCII for file formatting. ASCII can be used to translate documents from 
SAMNA so that they may be copied on another computer. 

The OSDT develops and administers promotional examinations for different correctional officer ranks 
including sergeant, lieutenant, and captain. OSDT undertakes certain security measures to ensure the 
integrity of the examinations. Only a handful of OSDT staff, including Elizabeth Haines, former 
acting Director of OSDT and current Curriculum Manager, her secretary, Barbara Edgerton, Teri 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1245 



CONTESTED CASE DECISIONS 



White, and Hannah Wilkins had direct access to the promotional examinations and answers during 
1991 . The examinations were normally kept in locked file cabinets or drawers except when actively 
being prepared. 

7. Petitioner has served as monitor for previous promotional exams given by OSDT to candidates for 
promotion within or into the sergeant and officer ranks of the Department of Correction. Petitioner 
was aware of the need for security of the examinations and the need to protect the integrity of the 
promotional process. 

8. At the time of the 1991 captain's promotional examination, the prepared examinations were kept in 
one or more of seven locked file cabinets and two locked file vaults which were located beside the 
desks of Barbara Edgerton and Elizabeth Haines. Only Elizabeth Haines, Barbara Edgerton, Teri 
White, and Hannah Wilkins had keys to the seven locked file cabinets and only Elizabeth Haines and 
Barbara Edgerton had keys to the two locked file vaults located beside their respective desks. 

9. The file cabinet and file vault keys for Elizabeth Haines, Teri White, and Hannah Wilkins were kept 
on the person or in their purses. Barbara Edgerton left her key loose in her unlocked desk drawer 
for a while and later kept it in a paperclip box inside the desk drawer. 

10. All members of the staff of OSDT, including Petitioner, had keys to the outside doors of the OSDT 
building. 

1 1 . While a promotional examination is being prepared, its components are kept in a documentation 
notebook, including the questions, the source material for the questions, the answers to the questions, 
and the diskette containing the actual examination. The documentation notebook also is kept under 
lock, except when actually being used in preparation of the exam. 

12. Barbara Edgerton did the actual typing of the 1991 Captain's promotional exam on Tuesday, 
Wednesday, and possibly Thursday morning, August 27, 28, and 29, 1991. The examination was 
placed onto a computer diskette using the OSDT SAMNA word processing system. 

13. Teri White was employed by OSDT during the period of time that Barbara Edgerton was typing the 
1991 Captain's Promotional Exam. Her office was adjacent to that of Barbara Edgerton's. On the 
days that Barbara Edgerton was typing the Captain's Exam, Teri White observed Petitioner in and 
out of Barbara Edgerton's office three or four times each day. 

14. Petitioner had in-service education responsibilities in OSDT, but no curriculum development 
responsibilities, and therefore had no work related reason, other than mail pickup, to be in Barbara 
Edgerton's office. During this period of time, Elizabeth Haines asked Petitioner's supervisor, Dan 
Lilly, to ask Petitioner not to spend so much time in Barbara Edgerton's office so that she could get 
her work done. Teri White did not observe Petitioner in Barbara Edgerton's office as frequently 
before and after the 1991 Captain's Exam preparation as she did during the Exam preparation. 

15. While typing the 1991 Captain's Exam, Barbara Edgerton experienced a computer problem and asked 
Petitioner to help her solve the problem, which he did. While helping Barbara Edgerton with her 
computer. Petitioner was directly exposed to the 1991 Captain's Exam. 

16. Thirty-six (36) applicants took the 1991 Captain's Exam. Two of the 36 applicants made perfect 
scores on the exam -- the first perfect scores ever recorded by the correctional staff in the 
administration of over 5,000 promotional examinations. 

17. The two perfect scores were achieved by Ella Cobb and Perry Faulk, both of whom had previously 
taken and failed the Captain's Promotional Exam. Ella Cobb had taken the Exam once before and 
had scored in the 50s out of a possible 100. Perry Faulk had taken the Exam twice and had scored 
in the 50s out of a possible 100 each time. 



1246 7:12 NORTH CAROLINA REGISTER September 15, 1992 



CONTESTED CASE DECISIONS 



18. Curriculum Manager Elizabeth Haines became suspicious when she realized that the individuals 
scoring 100s on the 1991 Captain's Exam had scored in the 50s on previous attempts. Upon 
investigation, she determined that the answer key contained an error in one answer. She determined 
that the 34 applicants not scoring 100 on the Exam had in fact answered the subject question correctly 
on the merits while Ella Cobb and Perry Faulk, although answering that question correctly according 
to the answer key, had missed the question on the merits. The question incorrectly answered on the 
answer key was an elementary question which applicants would be expected to answer correctly. 

19. An investigating committee consisting of none-OSDT employees was convened to determine whether 
and how the Exam was compromised. The committee interviewed all 36 Exam applicants as well as 
many of the OSDT staff. 

20. When Perry Faulk was interviewed, he denied cheating on the Exam. The committee asked him to 
submit to a polygraph examination to which he agreed. Prior to reporting for the polygraph 
examination. Perry Faulk consulted with an attorney at law. Upon appearing for the polygraph 
examination. Perry Faulk notified the polygraph examiner that he might have information useful to 
the investigation committee. 

21 . Perry Faulk did not take the polygraph examination as scheduled, but rather met with the committee 
and, through his attorney, negotiated an agreement with the committee whereby he would reveal the 
name of the person who had given him the 1991 Captain's Exam in exchange for assurance that he 
would receive a final written warning but not be terminated from employment with Respondent. 

22. Perry Faulk informed the investigation committee that he had approached Chaplain Shelton Murphy 
at the Harnett Correctional Institute where Perry Faulk worked and discussed with him the prospect 
of retaking the Captain's Exam in order to try to move up the career ladder. Perry Faulk and 
Chaplain Murphy discussed Petitioner as a possible source of aid for Faulk in preparing for the 
upcoming 1991 Captain's Exam. 

23. Perry Faulk informed the committee that he had contacted Petitioner by telephone and a meeting at 
Petitioner's house had been arranged. Perry Faulk informed the committee that he had gone to 
Petitioner's house at the agreed time and observed Petitioner type commands into his home computer 
which caused it to generate a printed copy of the 1991 Captain's Exam. Perry Faulk informed the 
committee that Petitioner had given him both the Exam and the answers and had requested that Faulk 
return the Exam when finished with it. 

24. Perry Faulk informed the committee that he had made audio tapes of the contents of the Exam and 
had used those tapes to study the Exam while he drove to and from work in his car. He informed 
the committee that the audio tapes were destroyed when he no longer had use for them. 

25. Ella Cobb denied having cheated on the 1991 Captain's Exam during her first interview before the 
investigation committee. Another applicant, Leroy Perry, informed the committee that he had 
received help in the form of answers written on a sheet of paper by Ella Cobb and passed to him 
during the course of the Exam. When the committee confronted Ella Cobb with this declaration, she 
admitted that she had assisted Leroy Perry during the Exam by providing him with answers. 

26. When questioned initially by the committee, Ella Cobb was asked to name all individuals she was 
acquainted with who worked at OSDT. She did not list Petitioner's name. Ella Cobb later admitted 
that she knew Petitioner by virtue of the fact that he was her hairdresser and had done her hair and 
that she had called him during the investigation. During Ella Cobb's interview before the committee, 
she was asked four questions from the 1991 Captain's Exam, only two of which she answered 
correctly. 

27. After interviewing Petitioner and others, the committee concluded that Petitioner had compromised 
the 1991 Captain' Promotional Exam and that he should be dismissed for unacceptable personal 



7:12 NORTH CAROLINA REGISTER September 15, 1992 1247 



CONTESTED CASE DECISIONS 



conduct. Elizabeth Haines conducted a pre-suspension conference with Petitioner on October 31, 
1991 and discussed with Petitioner his suspension for compromising the 1991 Captain's Promotional 
Exam. Elizabeth Haines conducted a pre-dismissal conference with Petitioner on December 9, 1991. 
Petitioner was dismissed by letter dated December 12, 1991, effective October 31, 1991, for 
unacceptable personal conduct arising from his role in compromising the 1991 Captain's Exam. 

28. Daniel Lilly, Petitioner's supervisor at OSDT, encountered Petitioner at a restaurant during 
Petitioner's suspension. Daniel Lilly asked Petitioner to tell him whether he had or had not 
compromised the 1991 Captain's Exam. Petitioner neither admitted nor denied having compromised 
the Exam, stating only that "they cannot prove it." 

29. Petitioner provided a copy of the 1991 Captain's Promotional Exam to Perry Faulk prior to the date 
of administration of the Exam. 

CONCLUSIONS OF LAW 



Based upon the foregoing findings of fact, I make the following conclusions of law. 

1. The parties are properly before the Office of Administrative Hearings. 

2. Respondent has carried the burden of proof it is required to carry in order to demonstrate just cause 
for the suspension and dismissal of Petitioner from its employment on the basis of unacceptable 
personal conduct arising from Petitioner's compromising the 1991 Captain's Promotional Exam by 
providing a copy of it to Perry Faulk prior to the date of administration of the Exam. Respondent's 
decision to suspend and ultimately dismiss Petitioner on the basis of unacceptable personal conduct 
is supported by substantial evidence and should be affirmed. 

RECOMMENDED DECISION 

Based upon the foregoing findings of fact and conclusions of law, it is hereby recommended that 
Respondent's suspension and ultimate dismissal of Petitioner on the grounds of unacceptable personal conduct 
arising from his compromising of the 1991 Captain's Exam by providing a copy of it to Perry Faulk prior to 
the administration of the Exam be affirmed. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings. P.O. Drawer 27447. Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina State 
Personnel Commission. 



1248 7:12 NORTH CAROLINA REGISTER September 15, 1992 



CONTESTED CASE DECISIONS 



This the 27th day of August, 1992. 



Beecher R. Gray 
Administrative Law Judge 



7:12 NORTH CAROLINA REGISTER September 15, 1992 U49 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. Tlie major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are fitrther broken down into chapters which shall be numerical in order. Tlie other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 




Architecture 




: 


2 


Agriculture 




Auctioneers 




4 


3 


Auditor 




Barber Examiners 




6 


4 


Economic & Community Development 


Certified Public Accountant Examiners 


8 


5 


Correction 




Chiropractic Examiners 




10 


6 


Council of State 




General Contractors 




12 


7 


Cultural Resources 




Cosmetic Art Examiners 




14 


s 


Elections 




Dental Examiners 




L6 


9 


Governor 




Dietetics/Nutrition 




17 


10 


Human Resources 




Electrical Contractors 




IS 


11 


Insurance 




Electrolysis 




19 


12 


Justice 




Foresters 




20 


13 


Labor 




Geologists 




21 


14A 


Crime Control & Public 


Safety 


Hearing Aid Dealers and Fitters 




22 


15A 


Environment, Health, an 


d Natural 


Landscape Architects 




26 




Resources 




Landscape Contractors 




28 


16 


Public Education 




Marital and Family Therapy 




31 


17 


Revenue 




Medical Examiners 




32 


18 


Secretary of State 




Midwifery Joint Committee 




33 


19A 


Transportation 




Mortuary Science 




34 


20 


Treasurer 




Nursing 




56 


*21 


Occupational Licensing 


3oards 


Nursing Home Administrators 




37 


22 


Administrative Procedures 


Occupational Therapists 




38 


23 


Community Colleges 




Opticians 




40 


24 


Independent Agencies 




Optometry 




42 


25 


State Personnel 




Osteopathic Examination & Reg. (Repealed) 


44 


26 


Administrative Hearings 




Pharmacy 

Physical Therapy Examiners 




4^ 
4S 








Plumbing, Heating & Fire Sprinkler 


Contractors 


50 








Podiatry Examiners 




52 








Practicing Counselors 




53 








Practicing Psychologists 




54 








Professional Engineers & Land Surv 


eyors 


56 








Real Estate Commission 




58 








Refrigeration Examiners 




60 








Sanitarian Examiners 




62 








Social Work 




63 



Speech & Language Pathologists & Audiologists 64 
Veterinary Medical Board 66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



1250 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1992 - March 1993) 



Pages 



Issue 



1 - 105 1 

106 - 173 2 

174 - 331 3 

332 - 400 4 

401 - 490 5 

491 - 625 6 

626 - 790 7 

791 - 902 8 

903 - 965 9 

966 - 1086 10 

1087 - 1154 11 

1155 - 1253 12 

ADMINISTRATION 

Auxiliary Services, 4 

Motor Fleet Management Division, 794 

AGRICULTURE 

Gasoline and Oil Inspection Board, 336 
Plant Industry, 904 

Structural Pest Control Committee, 332 
Veterinary Division, 342 

CULTURAL RESOURCES 

U.S.S. Battleship Commission, 91 1 

ECONOMIC AND COMMUNITY DEVELOPMENT 

Banking Commission, 629 
Community Assistance, 909, 968 
Departmental Rules, 801 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Adult Health, 1199 

Coastal Management, 211, 655, 1098 

Departmental Rules, 826 

Environmental Health. 223 

Environmental Management. 190. 416. 500. 644, 830, 1013 

Governor's Waste Management Board, 564, 920, 1197 

Health: Epidemiology, 140, 1212 

Health: Personal Health, 1217 

Health Services, 52, 659. 1174 

Marine Fisheries. 530 

NPDES Permits Notices. 1, 107 

Radiation Protection, 136 

Sedimentation Control, 920 

Vital Records, 565 

Wildlife Resources Commission. 28. 133, 408, 449, 551, 921 



April 

April 

May 

May 

June 

June 

July 

July 

August 

August 

September 

September 



7:12 NORTH CAROLINA REGISTER September 15, 1992 



1251 



CUMULATIVE INDEX 



Wildlife Resources Commission Proclamation, 176 

FINAL DECISION LETTERS 

Voting Rights Act. 106, 174, 406, 493, 628, 793, 966, 1090 

GOVERNOR/LT. GOVERNOR 

Executive Orders. 401. 491, 626. 791. 903. 1087. 1155 

HUMAN RESOLRCES 

Aging, Division of, 121. 346 

Day Care Rules, 123 

Economic Opportunity. 5 

Facility Services. Ill, 177. 496. 634. 980 

Medical Assistance. 4. 415. 496. 816. 989. 1156 

Mental Health, Developmental Disabilities and Substance Abuse Services, 111, 297, 409, 809, 1092 

Social Services Commission, 183. 911 

INDEPENDENT AGENCIES 

Housing Finance Agency, 450. 576. 928. 1219 

INSURANCE 

Consumer Services Division. 125. 1157 

Departmental Rules. 7. 1095 

Engineering and Building Codes. 19, 643 

Financial Evaluation Division. 1162 

Fire and Rescue Services Division, 17 

Hearings Division. 124, 1096 

Life and Health Division. 22. 347. 1167 

Property and Casualty Division. 20 

Seniors" Health Insurance Information Program, 132 

JUSTICE 

Alarm Systems Licensing Board. 27. 189. 643, 919 

Criminal Information. 1097 

General Statutes Commission. 353 

Private Protective Services. 918 

Sheriffs Education and Training, 990 

State Bureau of Investigation, 188. 499 

LICENSING BOARDS 

Architecture. 1111 

Certified Public Accountant Examiners. 355 

Cosmetic Art Examiners, 360, 922 

Dietetics/Nutrition. 923 

Electrolysis Examiners. 69. 700 

Nursing. 232. 700 

Professional Engineers and Land Surveyors, 566 

Speech and Language and Pathologists and Audiologists. 705 

LIST OF RULES CODIFIED 

List of Rules Codified. 72. 362. 452. 584 

PUBLIC EDUCATION 

Departmental Rules. 1 108 
Elementary and Secondary. 852. 1 108 



1252 7:12 NORTH CAROLINA REGISTER September 15, 1992 



CUMULATIVE INDEX 



REVENUE 

License and Excise Tax, 712 
Motor Fuels Tax, 361 

STATE PERSONNEL 

Office of State Personnel, 237, 705, 1113 

TAX REVIEW BOARD 

Orders of Tax Review, 494 

TRANSPORTATION 

Highways, Division of, 228, 856, 1062, 1110 
Motor Vehicles, Division of, 68, 142 



7:12 NORTH CAROLINA REGISTER September IS, 1992 1253 



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